Re R (Minors)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE SCOTT |
| Judgment Date | 07 February 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0207-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 1992 |
| Docket Number | 92/0157 |
[1992] EWCA Civ J0207-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BLACKPOOL COUNTY COURT
HIS HONOUR JUDGE TOWNEND
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Butler-Sloss
and
Lord Justice Scott
92/0157
No. 91D 661
MR. A. RUBIN (instructed by Messrs Montgomery & Cobain, Blackpool) appeared on behalf of the Appellant (Respondent).
MR. C.Q. HENRIQUES (instructed by Messrs Samuels Block, Blackpool) appeared on behalf of the Respondent (Petitioner).
I will invite Lord Justice Butler-Sloss to deliver the first judgment.
This is an appeal from the order of His Honour Judge Townend sitting in the Blackpool County Court on 13th December 1991. It is a case in which the normal directions as to confidentiality ought to be observed so far as the children are concerned. There has not been an application for additional evidence but we have been presented with the report of the court welfare officer, the subject of this appeal. No point has arisen on the written report but, in the usual way, it would be the policy, as I see it, of this court to look at the report if it was necessary since we are dealing with the welfare of children. As it turns out, we have not in fact been much concerned with it.
The order Of His Honour Judge Townend on 13th December was to transfer on an interim basis the residence of a little girl of eight years of age from her mother to her father, with whom her two elder sisters were and still are living. In order to understand this appeal by the mother from that order it is necessary to refer to a few facts.
The parents were married on 5th March 1977. There are three children: Victoria, born on March 1978, who is 13; Helena, born on 23rd April 1980, who is now eleven; and, Leigh, the subject of this appeal, born on 7th November 1983, who is now eight.
In July 1991 the parents separated, and the father petitioned for divorce. The mother left the former matrimonial home with Leigh; the two elder girls remained with their father and have remained with him ever since. It now appears that, although the mother originally wished to have a custody, now residence, order in respect of all three children, she has decided not to pursue that in respect of the eldest girl who has evinced a firm intention to remain with her father.
In July, after leaving the matrimonial home with Leigh, the mother applied for custody, a non-molestation order and an ouster injunction. There are and were cross applications in respect of the custody or residence of the three girls.
On 8th August His Honour Judge Andrews Q.C. adjourned the applications for custody and injunctions, and directed that a court welfare officer's report be prepared. The court welfare officer who came to consider the case became disturbed by problems which she saw surrounding the children, particularly the youngest, and she applied to the court for a hearing although at that stage she had not written her report. The hearing therefore on 13th December was initiated by the court welfare officer and not at the request of either party. According to the judge, in two notes (one supplied at the time of the hearing and the other supplied to this court), he found that the case was listed but that there was no indication as to why it had been listed. There was no letter from the court welfare officer to him and, of course, at that time there was no welfare officer's report. The judge understood that both parties were present and represented by counsel and solicitors. He was asked by the staff of the county court if he would see the court welfare officer who wished to explain to him why she had made the application and why there was no written report. The welfare officer went to see the judge and, having explained the circumstances, said that she was concerned that the children, particularly the youngest one, were becoming embroiled in unpleasant allegations, that the youngest child was particularly affected by this, and that she had seen the mother with the three children that morning. At that stage the judge stopped the welfare officer from saying anything further. He invited counsel into his room, explained what had happened, and repeated what had been said. He then went into court and heard the evidence. At that stage, counsel on behalf of the mother asked for an adjournment in order to have the written report available. The judge refused the adjournment by reason of the fact that the welfare of the children was paramount and the apparent disquiet of the welfare officer which had precipitated this hearing in any event. The welfare officer gave evidence and was cross-examined. At the end of the hearing the judge made two orders. On an interim basis he transferred the care of the youngest child the father, made an interim care and control order in respect of the other two children to their father, and directed that the case should be heard on 10th February, which is next week.
After the hearing there was no application for a stay but the notice of appeal was drafted, and the hearing date of 10th February was vacated. The notice of appeal refers effectively to four matters: procedural impropriety; refusal to grant an adjournment; bias on the part of the court welfare officer; and the judge making a decision which he was not justified in making in the exercise of his discretion.
Taking the first ground of appeal, we were referred to a number of judgments of this court relating to procedural improprieties where a judge or recorder had received substantive information from a court welfare officer, in one case at least, without disclosing the fact to the parties or their counsel. The mischief of such interviews is twofold. The judge is given information about a case which may be of significance behind closed doors without the opportunity for open examination of the witness, and consequently justice is not seen to be done.
In H. v. H. [1983] 4 F.L.R. 119 and Re: B [1990] 1 F.L.R. 300 the hearings, either for custody or access, at which the welfare officer was seen by the judge, were of the substantive applications. In each case this court held that the procedural irregularity of the judge discussing the case privately with the welfare officer was so great that it vitiated the basis upon which the decision was made and required a retrial. To call the effect of such proceedings a nullity, as was said in one of those cases, does not in my opinion take into account, as in this case, that a child has moved and that with children it may not be possible to put the clock back and act as if the order had never been made.
In a recent decision of this court, Re: C [1991] Fam. Law 438 Lord Justice Dillon re-stated the principle in The Official Solicitor to the Supreme Court v. K [1965] A.C. 201 that, in exceptional circumstances where the welfare of the child requires it, a judge may seek confidential documents or, I would add, talk to a welfare officer—who is of course an officer of the court—without disclosing all the contents of a report or a discussion to the parties. It is, however, an exceptional step to take. There may from time to time be perfectly innocuous reasons why a welfare officer might see the judge without discussing information which is the subject of contested court proceedings. A judge has to be careful in considering the circumstances when he sees a welfare officer in order to avoid the allegation of procedural impropriety.
The circumstances of this case, however, are entirely different. As I have already said, the court welfare officer brought the case to court of her own initiative. As an officer of the court she has the right, and indeed the duty to do so, if the welfare of the child she is reporting on or supervising requires that step to be taken. She had not had time to write her report, consequently the judge did not know why the case was in the list. She went to see the judge to explain why the case was to be heard and, according to the note of the judge, as soon as he heard what she wanted to say he stopped her saying anything further, called counsel into his room and told them what had been said. He then went into court. The welfare officer was examined and cross-examined on her oral evidence. On the facts of this particular case, I cannot see that any procedural irregularity has occurred, particularly since this was an interim hearing and the substantive hearing of cross applications for the care of two of the girls would shortly be before the court.
The judge has been criticised, and this is the second ground of appeal, for not granting an adjournment to enable the welfare report to be written and circulated in advance. If he had granted the adjournment, the whole purpose of the welfare officer bringing the case herself to court would have been frustrated. She had grounds which she believed, and which the judge accepted, were such that it wac necessary for the case to be heard then and there. What the welfare officer said in her evidence was this:
"My reasons for this application are my concerns for the youngest child, Leigh, who is more vulnerable than her sisters and says she wants to be with her sisters and her father. She is getting very upset, extremely upset…
Also of concern is that there are so many allegations on both sides and the children have been involved in such so that Leigh has been hearing things which she should not be hearing and has been getting very upset as a result.…
Overall, it was my concern that if I did not bring these matters to the court's attention now the situation was likely to drag on for some while and in the...
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