Re M (A Minor) (Contact)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Year | 1995 |
| Court | Court of Appeal (Civil Division) |
BUTLER-SLOSS AND KENNEDY, L JJ
Appeal – procedure to be adopted in appeal under the Children Act 1989.
Contact – child of mixed race – relevance of child's racial origins and concerns about confusion about racial identity.
Reasons – failure by justices to give reasons for disagreeing with the recommendation of the court welfare officer.
The parents of a girl born on 14 January 1987 had maintained a relationship for approximately seven years, but had neither married or set up home together. The mother was white and the father black, and the child was consequently of mixed race. The mother subsequently married a white man. When the relationship between the mother and father ended, unsupervised contact took place between the child and her father, although, from time to time, this was stopped by the mother. The father applied to a family proceedings court for a contact order and on 5 August 1992 an order was made by consent, which did not take effect. The father then applied for a parental responsibility order, following which the mother issued an application to discharge the contact order.
The hearing before the justices commenced in May 1993. However, the time set aside proved to be entirely inadequate and the case was adjourned until June 1993, when two further days were made available. Following the hearing, there was a further delay of 10 weeks before the justices gave their decision and reasons on 6 September 1993. The mother's application was granted and the contact between the child and her father was brought to an end.
The father appealed against the justices' decision. Although the Judge was critical of the manner in which the case had been dealt with before the justices, he declined to interfere with the exercise of their discretion and dismissed the appeal.
The father further appealed saying that the Court of Appeal was not bound by the guidelines laid down in G v G (Minors: Custody Appeal) [1985] 1 WLR 647, and could, if necessary, rehear the case de novo and allow fresh oral evidence to be adduced. The father additionally alleged that the Judge had been wrong to uphold the decision of the justices.
Held – allowing the father's appeal and remitting the case (and the application for a parental responsibility order) to the Family Division: (1) An appellate court exercising jurisdiction under s 94 of the Children Act 1989 was required to approach an appeal concerned to see if the justices had properly exercised their discretion in the decision to which they came. If their decision did not exceed the generous ambit within which
reasonable disagreement was possible, it would be inappropriate for an appellate court to interfere, not having had the advantages of the justices, who saw and heard the witnesses. The principles in G v G should broadly apply to appeals under s 94. The appellate court was also required to be satisfied that the trial court had taken into account all relevant matters and had disregarded all irrelevant matters when the balancing exercise came to be carried out. Although an appellate court might be less ready to assume that lay magistrates had taken relevant factors into account if they had not referred to them than it might in the case of an experienced Judge, justices' reasons were not intended to be a judgment and the appellate court should be slow to interfere with the decisions of lay justices, as it would be to interfere with the decisions of any other tribunal charged with the duty to make decisions in the exercise of its discretion.
(2) The justices were in error on a number of important matters, particularly their failure to give any reasons for disagreeing with the recommendation of the court welfare officer. By not giving any reason, the justices failed to deal with the underlying reasons for which the recommendation...
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