Re P (Minors) (Children in Care: Access)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE BALCOMBE,LORD JUSTICE STOCKER |
| Judgment Date | 11 February 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0211-1 |
| Docket Number | 88/0104 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 February 1988 |
[1988] EWCA Civ J0211-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GATESHEAD COUNTY COURT
(Her Honour Judge Paling)
Royal Courts of Justice
Lord Justice May
Lord Justice Balcombe
and
Lord Justice Stocker
88/0104
MR. P. FOCKE, Q.C. and MR. T. FINCH (instructed by Messrs Mulcahy Smith & Co., Gateshead) appeared on behalf of the Appellant/Respondent.
MR. R. R. ELSEY (instructed by Messrs John Foley & Co.) appeared on behalf of the Respondent/Applicant.
MR. P. G. RENNIE (instructed by the Solicitor to the Borough Council) appeared on behalf of the Intervener.
I will ask Lord Justice Balcombe to give the first judgment.
This is an appeal from an order of her Honour Judge Paling, sitting at Newcastle on 23rd July last year, whereby she refused a father access to his four children, who are aged ten, six, three and one year. The three older children are girls and the youngest is a boy.
The parents were never married, but they cohabited for a period of some ten years and were for all apparent purposes a family unit. They separated in December 1986. Various proceedings were then started by the mother, who alleged violence on the part of the father.
On 16th June last year there was a suggestion that the eldest child had been sexually abused and suspicion fell upon the father. The child was medically examined and found to have four tears of her hymen, but she did not at any stage allege that it was the father who had abused her. On the same day the mother, with whom the children were living, agreed to them being received into voluntary care. The other children were then medically examined. There was no suggestion that there had been any abuse of the year old little boy, but in relation to the two girls, in one case there was medical evidence suggesting sexual abuse and in the other case a possibility of sexual abuse.
On 24th June 1987, the mother applied under section 9 of the Guardianship of Minors Act 1971 for custody of the children. That application came in the first instance ex parte before His Honour Judge Orde, who granted a non-molestation injunction relating to the children and a further hearing was ordered for 9th July. In the meantime the father swore an affidavit denying abuse and seeking access.
The matter came before His Honour Judge Carr on 9th July, who awarded custody to the mother. The father gave a non-molestation undertaking. The local authority were given leave to intervene. A supervision order was made in their favour and the father's application for access was adjourned until 23rd July, when it came before Her Honour Judge Paling. That is the order which is now appealed against.
As so often happens in a busy county court, the case was in a crowded list. There was no application for an adjournment. The learned judge said this:
"The Respondent [the father] applies for access to be reinstated. The children are the subject of a voluntary care order. They are seeing the mother and they are not seeing the father. I have heard evidence from father and read Affidavit and heard evidence from Mr. Frazer [a social worker with the local authority].
I accept the evidence of [the mother] as to the violent nature of the marriage. I accept the evidence as to the conversation with [one of the children] after this child was taken into voluntary care."
That was the second daughter, who was alleging that there had been sexual abuse by the father.
"The details applied by [the social worker and the mother] as to how the interview took place as to sexual abuse I accept. Having heard from [the social worker] it is right to say that in his full and detailed Affidavit put forward by him details of the various medical matters are not disclosed. The timing of the interview and examination have not been disclosed but on the evidence of timing, and what [the second child] said and clear evidence of [the social worker] as regards [the second child] since the care order it is apparent to me that it is not in the best interests of the children to have access because:
1. The children suffered from witnessing violence to" [the mother].
2.a. The change in the children after being made the subject of a care order (this was taken from the evidence of [the social worker]).
b. [Mother] not subject to pressure from Local Authority.
3. It would be folly to reinstate access because:
i) Disharmony at home and the potential (of violence).
ii) Even from the brief evidence of [the mother] it may be there has been some sexual interference which [the second child] is putting at the door of the [father].
Access is the child's right. Whatever the shortcomings of the evidence access is to be denied. (There will be no more access).
If there is to be a further application then...
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