Thursday, May 17, 2012

S (A Child) and B (A Child): Too much haste...

"In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child."

We are always being reminded these days of the need to reduce delay in proceedings concerning children. However, two cases reported on Family Law Week yesterday serve as reminders that there can be such a thing as too much haste. In both cases the court made s.8 orders without properly considering the evidence.

In S (A Child) [2012] EWCA Civ 617, a mother successfully appealed against an order for supervised contact that had been made without hearing from the Cafcass officers. The case concerned the father's application for contact with his three year old daughter. The court had made findings of violent conduct by the father against the mother and her 16-year-old son, and had directed a Cafcass report, which recommended supervised contact. As the court indicated it was likely to follow the recommendation, the mother consented to an interim contact order, and an addendum Cafcass report was ordered on the progress of the contact. A different Cafcass officer was appointed to prepare the addendum report and, having met the father in the course of her enquiries, she took a different view of the case and wrote to the judge expressing concerns about supervised contact commencing.

A directions hearing took place, and the mother submitted that the court should hear oral evidence from the Cafcass officers and adjudicate upon what should happen about contact and that until that had been done supervised contact should not proceed. The judge rejected this submission, on the basis that it would cause further delay, and ordered supervised contact to go ahead. The mother appealed.

In the Court of Appeal Lady Justice Black allowed the appeal. She said (at paragraph 34):
"I have very great sympathy with the judge, who had to decide what to do about a most unusual situation, knowing that if he were to accede to the mother's suggested course he would inevitably be delaying the start of contact for a father and daughter who had already not been in contact with each other for a very significant period of time. He would have been aware of the pressures on the court lists and on the time of the Cafcass officers. But I cannot accept that in the exceptional circumstances that he faced it was appropriate to proceed without the attendance of the officers to give oral evidence."
The case B (A Child) [2012] EWCA Civ 632 concerned residence applications by a mother and the maternal grandmother. At a hearing just a few days after the applications were made, the judge made directions for contact, and a residence order in favour of the mother. The grandmother appealed against the residence order, on the basis that it had been made without proper evidence or argument.

In the Court of Appeal Lord Justice Hughes found that the judge had not had the material on which to make the decision that she had (the only documents were the applications), and had heard no real argument about it at all (she had conducted the short hearing entirely by way of judicial question and advocates' answer). She had merely concluded early in the proceedings that it was inevitable that the child would need to live with the mother. Whilst Lord Justice Hughes agreed that this may turn out to be the case, he felt that "the judge in this case out of the best possible motives moved in the end too fast". Accordingly, the residence order was set aside.

In a consenting judgment, however, Lord Justice McFarlane took pains not to close the door to courts taking "a robust and interventionist role", particularly in the light of the pressure on the family courts:
"Where a court is satisfied that it has the material necessary to determine an issue, and after the court has conducted a fair process, albeit maybe a robust and pragmatic process, during which all parties, particularly those who may oppose the order that the court has in mind, have been heard, then there is nothing to prevent a court at an early stage in proceedings making a determination of the sort that was made in this case."

No comments:

Post a Comment

Thank you for taking the time to comment on this post. Constructive comments are always welcome, even if they do not coincide with my views! Please note, however, that comments will be removed or not published if I consider that:
* They are not relevant to the subject of this post; or
* They are (or are possibly) defamatory; or
* They breach court reporting rules; or
* They contain derogatory, abusive or threatening language; or
* They contain 'spam' advertisements (including links to any commercial websites).
Please also note that I am unable to give advice.

Note: only a member of this blog may post a comment.