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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> D (A Child), Re [2002] EWCA Civ 340 (8 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/340.html Cite as: [2002] EWCA Civ 340

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WARRINGTON COUNTY COURT
(JUDGE FARMER)
(Application of Applicant for PTA)

		Royal Courts of Justice Strand London WC2 Friday 8th March 2002

Friday 8th March 2002

1. LADY JUSTICE HALE: This is a father's application for permission to appeal a procedural order made by His Honour Judge Farmer QC in the Warrington County Court on 5th December 2001 in contact, and now residence, proceedings concerning his child Honor, who was born on 31st August 1995. The essentials of that order were that the judge refused the mother's application to adjourn the trial of factual issues between the parties, but he vacated the trial date fixed of 12th and 13th December because the child and family reporter was not able to provide a report by then. He relisted the trial for 4th and 5th February 2002. He made no order on the father's application for disclosure of certain social services records because the child and family reporter could look at these to see if there was anything relevant that should be disclosed. He adjourned the father's application for a psychological assessment to the hearing in February. He directed a relisting before Christmas if the parties were unable to agree interim indirect contact before then.
2. Matters, however, have moved on since that order. Firstly, His Honour Judge Farmer had to make an interim contact order on 20th December 2001 providing for contact of an indirect nature between father and child on Christmas Day. The child and family reporter has now produced a report summarising the contents of the social services file. That report is dated 31st December 2001. However, on 4th February 2002 His Honour Judge Hughes made a further order adjourning the trial until 27th and 28th June 2002. He ordered limited disclosure of documents from the social services file. He also made an order for indirect contact. Not surprisingly, therefore, the father also wishes to appeal against that order. I have treated this hearing as the hearing of an application for permission to appeal against both of those orders.
3. The father has filed what, in my view, is an excellent skeleton argument, making the points that he wishes to make with great clarity and with appropriate references to the European Convention of Human Rights, Articles 6 and 8; but one would hope that English law would be to the same effect because English law also regards delay in determining an issue relating to a child as likely to be detrimental to the child's welfare. The father's basic contention is that both he and the child are being denied justice through the delays that have taken place in this case. He also wishes to have relevant disclosure from the social services files and a psychological assessment; and he is concerned that as a litigant in person he should have the assistance of a McKenzie friend and that the court may be imposing unreasonable restrictions by demanding disclosure of particulars relating to the McKenzie friend.
4. He has provided a very helpful chronology, from which I propose to summarise the main points. The parties met in August 1994. At that stage the mother had a child, Laura, who was born on 3rd October 1991. They married in April 1995 and their daughter Honor was born on 31st August 1995. In June 1998 the mother left home with the children. In July 1998 the father petitioned for divorce on the grounds of her unreasonable behaviour. However in August 1998 the parties reconciled. There appears to be some dispute between them as to the extent of that reconciliation and as to what happened between then and early 2000, but certainly there was some continuation of the relationship between them. According to the father, they finally separated in January 2000, and, after that, the father had contact with both children. The last contact that he had with Honor was from 1st to 3rd August 2000 when Honor stayed for the weekend with him and his new partner and her children. In November 2000 he filed a supplemental divorce petition on the ground of the mother's unreasonable behaviour. The mother had involved the police on numerous occasions over that time, and obviously it is not for me to express any views on that at this stage. In November 2000 an allegation about a disclosure allegedly made by the children to the maternal grandmother was passed on to the mother and reported to police and social services, who investigated but took no further action.
5. On 24th January 2001 the mother applied for a non-molestation order. There was nothing in the evidence filed in support of that relating to the allegation allegedly made by the children to the grandmother. On 29th January the father gave certain undertakings. On 6th February the father applied for defined contact. The first directions appointment in relation to that application took place in April. Witness statements were filed by the mother and the maternal grandmother on 24th April in which those allegations were described. On 30th April the father gave an undertakings not to intimidate, harass or pester the mother or go within 50 metres of her home, repeating the undertaking that he had given in January. On 15th May the court ordered that a report from CAFCASS be filed by 20th July. On 23rd May the child and family reporter, Mr Horsefield, filed an interim report in which he set out the disputes of fact between the parties, including allegations of violence against the father and the allegation reported by the maternal grandmother, and suggested that, as those might have a bearing on whether contact between the father and Honor should be reintroduced, it might be better for those to be disposed of and findings of fact made before he took the usual steps of arranging to see Honor and to observe contact between Honor and her father. That, as I say, was in May 2001.
6. In July the judge ordered that a schedule of issues and witnesses be prepared. I have read that schedule and so I understand what the issues are. One observation that is worth making at this stage is that all the behaviour alleged against the father, particularly as it affects the child or children, predates the contact that took place in August 2000. On 6th August the mother applied for a prohibited steps order to prevent the father approaching Honor. On 14th August the District Judge ordered disclosure of relevant records from the police and from social services. He listed the factual trial to take place on 12th and 13th December 2001. The father gave an undertaking not to contact Honor. There was an intervening application for committal, which need not concern us. Then in September the social services authority applied to the court to resist disclosure of the social services files. On 6th November 2001 His Honour Judge Farmer discharged the order for disclosure but ordered a section 7 report from the child and family reporter. He also ordered a final directions hearing to take place on 5th December 2001. On 30th November the father made an application for residence or shared residence. He also made a further application for disclosure of the social services files and for a global psychological assessment. The mother filed an application to adjourn the hearing fixed for 12th and 13th December 2001.
7. That was the context in which His Honour Judge Farmer made the orders which I have described. He was not sympathetic to the mother's application to adjourn. He did not consider that her pregnancy was an acceptable reason to avoid a hearing of these factual issues. He made no order on the disclosure of social services records because he wanted to hear what the child and family reporter had found out from them before deciding whether the public interest outweighed the confidentiality of those records. He similarly adjourned the psychological assessment until after the factual hearing had taken place. As I have said, he made an indirect contact order on 20th December. Thereafter the CAFCASS child and family reporter made a report about the contents of the files. On 4th February, however, His Honour Judge Hughes granted the mother's application for an adjournment and the case has now been put off until June of this year. He made a limited disclosure order, as I have also said.
8. In my view it can sometimes be helpful to resolve factual disputes in advance of deciding the welfare issues. Certainly it is important not to sweep such factual issues under the carpet if they are essential to deciding where the best interests of a child may lie. But ordering a trial of such issues in advance of consideration of the welfare issues is only likely to be helpful if it can be done quickly. It cannot be satisfactory that a trial which was recommended by the child and family reporter in May of 2001 is not to take place until the end of June 2002. That is a very substantial delay. It is also a delay which is likely to have an adverse effect upon the outcome of the eventual contact application because in the meantime the father is having no direct contact with the child. An order for indirect contact was only made in December and the father complains that that order is not being complied with. If there is to be such delay therefore the court has to give careful consideration to whether or not it is appropriate to advance the consideration of the welfare aspects in order to ensure that the matter is not prejudged by the mere fact of delay.
9. There is also a concern that the appearance, at least, was given that the child and family reporter was being used to decide the factual dispute. That would not be appropriate. Child and family reporters provide information to the court which the court cannot get in any other way, principally information about the child's own wishes and feelings. They also provide recommendations based upon their expertise as social workers on what may be in the best interests of the child. We have not even reached that stage in this case yet. No such investigation has taken place.
10. As far as the disclosure of the social services files is concerned, it is unusual, in my experience, for social services not to accept that where they have relevant information about allegations which have been made to them from the very same sources as are now putting them before the court in private law proceedings not to accept that there should be disclosure. It is not quite clear to me whether the basis of their objection was public interest immunity or whether it was confidentiality. These are two distinct concepts. The public interest in the fair administration of justice would often override common law confidentiality objections and it can override public interest immunity objections. This was a case where there was no videoed interview and there was no action taken. The matter was not even taken as far as an interview with the father as I understand it. The information on the files, therefore, is in a sense of a negative rather than a positive kind. It may be that one of the practical difficulties was that the father is acting in person. He has a McKenzie friend whom he wishes to help him. He has been reluctant to disclose the address and something about the experience of his McKenzie friend, and that may have been an additional consideration for the court as to whether it was appropriate to order disclosure of confidential information. Clearly any information which is disclosed in the course of children proceedings is confidential. The rules provide for that and this is even more important if it has been forcibly disclosed in response to an application to prevent its disclosure. In those circumstances it may not be in the slightest bit unreasonable - I express no concluded view about it - for at least the court to seek reassurance that those to whom the father would wish to disclose such information are of a character to whom such disclosure should properly be given. After all with lay people one does not have the same disciplinary possibilities that one has with members of the legal profession.
11. I do not suggest that that necessarily was the reason, because it is certainly not what the judge said in his judgment. But nevertheless I mention it partly because it will be relevant when this court comes to consider the issue in due course and partly for the father to consider carefully how he wishes to proceed.
12. For those reasons it seems to me that an appeal in this case, particularly on the timetabling issue, would stand a real prospect of success, and so I give permission to appeal. I direct that that appeal be listed as soon as practicable because it is clearly urgent and room must be found in the list for it to be heard before Easter. The time estimate for that appeal, in my view, would be two hours. I have already advised the father to seek the advice of the Royal Courts of Justice Advice Bureau. This is partly because it may be possible to arrange, should he so wish, for him to be represented through the pro bono scheme which is there operated, but also because he tells me that the mother's own public funding has been revoked and communication, therefore, with her will be extremely difficult for him because of the undertakings which he has given to the court. Yet such communication in some shape or form obviously has to take place, and it may be that that is a matter on which the Advice Bureau can in particular assist him.
13. I will order that a transcript of this judgment be made available at public expense to both parties.
ORDER: Application granted.