Re W (Child: Contact)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Year | 1993 |
| Date | 1993 |
| Court | Family Division |
WALL, J
Child – application for contact order – justices' reasons for decision – whether decision vitiated by procedural irregularity and inadequacy of reasons.
Child – justices seeing child in their retiring room – whether necessary to do so.
Child – court ordering separate representation in non-specified proceedings – whether power to do so.
The child was born in March 1985 and was now 8 years of age. Her parents had lived together for a brief period before she was born. Her mother had since married and the child now lived with her mother, step-father and half-brother.
The father had been attempting to obtain access to the child since 1985 and there were several applications to the court, all of which were opposed by the mother. Nevertheless, sufficient progress had been made by 1990 for the father to be granted staying access. Following the first overnight stay, the mother made an allegation of sexual abuse of the child against the father. He was arrested and interviewed by the police but he denied the allegation and he was not prosecuted. Thereafter the mother refused the father any access.
In 1992, the father applied to the family proceedings court for contact with the child. The court ordered a welfare report and that the child should be separately represented by a solicitor. There were two hearings before the justices. At the first hearing in November 1992 the welfare officer reported on the mother's hostility towards the father and he concluded that the child's view of her father was plainly coloured by her mother's attitude. The child had told the welfare officer she did not wish to see her father and the welfare officer, therefore, did not recommend contact. The justices ordered that there be supervised contact on two occasions in the presence of the welfare officer and that the situation be reviewed by them in December 1992.
At that second hearing the welfare officer reported on the contact which had taken place and that the child had told the welfare officer that she did not want to see her father. The welfare officer was of the opinion that the child would "never be able to benefit from contact with her father unless she is emotionally free to enjoy such contact". The solicitor appointed to represent the child invited the justices to see the child. There was no objection from the other parties and the justices saw the child in the retiring room in the presence of her solicitor and the justices' clerk.
The magistrates made no order for contact. The father appealed.
Held – allowing the appeal: (1) The justices had failed to comply with the requirements
of the Family Proceedings Courts (Children Act 1989) Rules 1989 r 21(5) to (7) in that they failed to record findings of fact and reasons before making their announcement. The written reasons appeared to have been recorded some time after they had been announced. There was a duty on the justices to make clear findings of fact on the issues and in particular they should have made findings in relation to the mother's allegations of sexual abuse and of the father having possession of pornographic material. These procedural irregularities and the inadequacy of the reasons given vitiated the decision of the justices. The case would be remitted for rehearing before a Judge in the county court.
(2) There was no need for the justices to see the child in their retiring room for the purposes of their decision and the fact that they did so could only have added to the stress and confusion she was already feeling.
(3) The power to order that a child be separately represented under the Children Act 1989 r 41(3) applied only in relation to specified proceedings and not to proceedings such as these. In any event, it was unnecessary for the child to be separately represented as her interests could properly be protected by the preparation of a court welfare report.
Statutory provisions referred to:Children Act 1989, s 41(3).
Family Proceedings Courts (Children Act 1989) Rules 1991, rr 14(1)(d), 21(5), (6) and (7).
Family Proceedings Rules 1991, r 9.2(A).
Cases referred to in judgment:Hertfordshire County Council v W[1992] 2 FCR 885.
Hillingdon Borough Council v H[1992] 2 FCR 299; [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 676.
S v S (Children: Financial Provision)[1993] 1 FCR 805; sub nom S v S (Children: Periodical Payments) [1993] 2 WLR 401.
AppealAppeal from the Crawley family proceedings court.
Sorrell Dixon for the father.
Anne Studd for the child.
MR JUSTICE WALL.This is an appeal by the father against the decision of the Crawley justices on 15 December 1992, making no order on his application for contact with his daughter W who was born on 13 March 1985 and is now 8.
The father, who is now 30, and the mother who is 31, lived together only from February to June 1984. W was conceived during that brief period of cohabitation, and her parents never lived together with her in one household. W has a half-sister born to the mother prior to her association with the father and who now lives with her maternal grandparents. She also has a half-brother born on 17 Sepember 1988 of whom the mother's husband, Mr A, is the father. W thus now lives with her
mother, Mr A and her half-brother.
This appeal arises from the father's attempts to maintain contact with W which go back to 1985, the year of W's birth, and culminated in the order which is the subject of the present appeal. The mother has throughout opposed contact. The practical consequences of the justices' order is that if it stands it is unlikely that the father will have contact with W in the foreseeable future.
The mother has not been represented in this appeal and has taken no part in it. W has, however, been represented by counsel instructed on behalf of the solicitor appointed to represent her in the proceedings. I shall say more about his role later in this judgment.
The appeal raises a number of points. In essence, however, what is said is that the justices' failure to observe the provisions of the Family Proceedings Courts (Children Act 1989) Rules 1991 rr 21(5) to (7) vitiates the decision and that accordingly the court has no alternative but to allow the appeal and remit the matter for rehearing.
The provisions of the Family Proceedings Courts (Children Act 1989) Rules 1991.Rule 21 of the rules, lays down a strict procedure for the hearing of all applications under the Act in the family proceedings court. The relevant subrules for present purposes are (5) to (7) which are in the following terms:
"(5) Before the court makes an order or refuses an application or request, the justices' clerk shall record in writing –
(a) the names of the justice or justices constituting the court by which the decision is made and
(b) in consultation with the justice or justices the reason for the court's decision and any findings of fact.
(6) When making an order or when refusing an application, the court, or one of the justices constituting the court by which the decision is made, shall state any findings of fact and the reason for the court's decision.
(7) After the court announces its decision, the justices' clerk shall, as soon as practicable –
(a) make a record of any order made in the appropriate form in Sch.1, to these Rules or, where there is no such form, in writing; and
(b) ... serve a copy of any order made on the parties to the proceedings and on any person with whom the child is living."
It is to be noted that the rules are mandatory. They require the reasons for the court's decision and any findings of fact to be recorded in writing by the clerk before the court makes its order. They also require the court to announce the findings of fact and the reasons for the decision in court when the order is made. The logic behind the rules appear straightforward and sensible. Justices are unused
to giving extempore judgments and in any event where there is a bench of three, it is obviously necessary for there to be...
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