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H (A Child) [2006] EWCA Civ 896

This was an application for permission to appeal, with appeal to follow, an order refusing the father's application that his daughter should be joined as a party to contact proceedings and represented by NYAS. Permission and appeal granted.

The principle reason for allowing the appeal was that the circuit judge had not allowed the court to hear further material from experts relating to the application, particularly in the light of the father's near blindness.



Neutral Citation Number: [2006] EWCA Civ 896





Royal Courts of Justice


London, WC2

Friday, 9th June 2006

B E F O R E:






(DAR Transcript of

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MS P WALSH (instructed by Messrs Alexandra Haigh & Co, 10 Queens Road, Brentwood, Essex, CM14 4HE) appeared on behalf of the Appellant father.

MRS A SPRATLING (instructed by the National Youth Advocacy Service, 99-105 Argyle Street, Birkenhead, Wirral, CH41 6AD) appeared on behalf of the child by her Children's Guardian.

MS S WICKINS (instructed by Messrs Michael Cullen and Partners, 102 High Street, Billericay, Essex, CM12 9BY) appeared on behalf of the Respondent mother.


(As Approved by the Court)

Crown copyright©

1. LORD JUSTICE WALL: This is an application by Mr H for permission to appeal against an order made by HHJ Yelton sitting in the Southend County Court on 22 November 2005. The proceedings before the judge related to an application for contact by Mr H with his daughter G, who was born on 27 November 1997. The respondent to the application was G's mother, Mrs P. The case has a lengthy history which for the purposes of this judgment it is unnecessary for me to recite, save to say that there have been a number of applications to the court and by the time the matter reached the district judge in September 2005, in circumstances I will describe in a little more detail in just a moment, there had been two reports by the reporting officer from CAFCASS and effectively that officer was saying to the judge that, as far as CAFCASS were concerned, the end of the road had been reached. The message from CAFCASS was that there was no point in forcing the pace, it would be counter-productive and therefore the only real solution was a continuation of indirect contact between G and her father.

2. When the matter came before the district judge on that basis in September 2005 the parties reached an agreement that they would jointly instruct a psychologist to advise on the issue of contact. The identity of the psychologist was to be agreed and disclosed to the court within 14 days of the order. The solicitors for Mr H were to prepare a letter of instruction to be circulated and agreed within 14 days, and the expert was to have permission to see G with her father if the expert deemed it necessary. All the papers in the case were to be shown to him.

3. Most unfortunately, and for reasons which have not been explained, the psychologist in question was not given instructions until November 2005. That put the entire timetable out. The psychologist in question, Dr Hessel Willemsen, was given his instructions on 23 November, and it was manifestly impossible for him to report by the date which the court had ordered, namely 20 December, with a view to there being a hearing in January or February 2006.

4. I simply pause to comment that where experts are instructed it is of the utmost importance that they are instructed promptly and fully and I regard it as most unsatisfactory that Dr Willemsen was not given instructions until 23 November, with the consequence that he was unable to report until 20 April 2006, extensions as I understand it having been given for that additional delay.

5. In the meantime there was a change of tack on the part of Mr H and his advisers. We are frankly told by counsel on Mr H's behalf today that when she was before the district judge in September she was not fully aware of the range of work which was capable of being carried out by the National Youth Advocacy Service ("NYAS") and therefore the question of NYAS acting in the case was not put to the district judge. Come the hearing before HHJ Yelton, that position had been rectified and an application was thus made to the judge for NYAS to be instructed.

6. The judge gave a short and characteristically trenchant judgment. He was, I think, placed in a very difficult position for which I have considerable sympathy. He recorded that on 6 September the parties had embarked on a particular course, namely the instruction of a Child Psychologist, with a view to a hearing in January 2006. The timetable had slipped. The hearing in January was plainly going to be impracticable; but the judge's view was – in effect – well, that is the course you have embarked upon. Once the report is available progress should be able to be made. The judge therefore did not think it necessary for G to be separately represented.

7. The ratio of his judgment, apart from the delay point, seems to me to have been in paragraph 4, in which he accepted that the criteria for the appointment of NYAS were met in accordance with the recent practice direction from the President but said ultimately that it was in the end always a matter of discretion for the court. There were arguments on both sides and:

"I have concluded that it would not be right for NYAS to be appointed because it seems to me one could then have a plethora of people involved having already had the CAFCASS officer involved and hopefully after the psychologist's report has been obtained the matter can then be dealt with."

So he refused the application.

8. The case came to me on the papers, again with some considerable delay, on 27 March 2006, and I pointed out in my written reasons that this was a difficult, intractable contact dispute; a category of case which plainly met the criteria for separate representation as indeed the judge had himself recognised. I went on to say this:

"Whilst I agree with the judge that the delay in the implementation of the district judge's timetable is unfortunate, it may well be arguable that his principal reason for refusing to agree with the involvement of NYAS – the plethora of people involved – is unsound given that CAFCASS appears to take the view that it has no further role and that if direct contact is to be resumed it will need ongoing professional help and not just advice from Dr Willemsen. If the permission application is successful it will be essential for there to be a coherent and ordered structure for NYAS' involvement which minimises any further delay. There will need to be co-ordination between instruction of NYAS and the work to be undertaken by Dr Willemsen. The papers should thus be served on NYAS, who should be invited to indicate in writing its reaction to the invitation to act as G's guardian and if it wishes to attend at the hearing to express its view. In any event if the result is positive NYAS should spell out its views on the future direction of the case."

9. I went on to comment that although there was an indication in the papers that NYAS had expressed a preliminary interest in acting in the case, that indication needed to be examined further. So I gave the permission for Mr H's solicitors to send the papers to NYAS asking them to express a view as to whether or not NYAS was willing to intervene, and if so how it would see its intervention in practical terms, given the timetable and the involvement of Dr Willemsen. Reasons should be provided either way for us to consider, whatever NYAS decided. I gave NYAS permission if it wished to appear at the hearing.

10. As I indicated a moment ago, I have considerable sympathy for the position in which HHJ Yelton found himself, but with great respect to him I think his error was to decide the point then and there on 22 November. In my judgment in a case such as this, where the criteria for involving NYAS are clearly made out, it would be sensible for a judge asked to involve NYAS not to make an instant decision but to consult NYAS, to allow the papers to be shown to NYAS and for NYAS to respond. In my experience NYAS does not take cases willy-nilly. It only takes those cases in which it thinks it can make a proper contribution. It would have been fully open to NYAS to have responded to the invitation with a negative and reasons for taking a negative view.

11. In my judgment the judge denied himself the opportunity to consider the material which has now been placed before this court. Had he seen the material which we have seen, I think his decision would be likely to have been different. That I think is the first point.

12. The second point is that, as the information has emerged, it is clear that, although there may be an initial difference of approach between Dr Willemsen and NYAS in the person of Mrs Provan, we are assured by Mrs Spratling, who appears for NYAS today, that there will be absolutely no difficulty in Mrs Provan and Dr Willemsen meeting; and every likelihood that they will agree a programme of work. Furthermore there is not a duplication, say NYAS, because Mrs Provan is a hands-on social worker essentially concerned with the welfare of the child and gaining the child's confidence and helping the child in this very difficult situation, whereas Dr Willemsen's role is very much more towards helping the parents come to terms with the long-standing and, indeed, outstanding differences between then and their mutual hostility which has undoubtedly adversely effected G.

13. So I do not think, with respect to the judge, having heard Mrs Spratling and having read the reports, that there is an over-manning or duplication, and I also think there is a further reason for the sensitive involvement of professionals in this case, in that most unfortunately Mr H is, if not totally blind, severely restricted in his sight and clearly needs particular assistance, and particularly sensitive assistance I think, in forming or reforming a proper relationship with a daughter whom he cannot really see but whom he needs to respond to in other ways. All that, in my view, requires sensitive professional involvement.

14. The progress of the case to date, with the limited facilities which CAFCASS could offer, has not achieved the result which everyone had hoped. This is, in my view, one of those intractable contact disputes in which there is really no very good reason why G is not seeing her father; but the parties and G need professional help to overcome the difficulties which undoubtedly exist, not least because of G's own attitude. The involvement of a psychologist and a social worker is not in my judgment a duplication. Their roles are indeed complementary, and it would be very much my hope and expectation that between them Mrs Provan and Dr Willemsen will be able to work with the parents and G and produce a regime of contact which does not require the further involvement of the court, save by way of review or consent order. But in any event the court must retain overall control, not least because NYAS is a guardian appointed in the proceedings and Dr Willemsen himself is an expert appointed in the context of the proceedings.

15. For these reasons therefore, and without wishing in any way to be critical of the judge, I do think he reached the wrong result. He should have allowed NYAS to be consulted and to make representations. Had he seen the result of those representations I am confident he would not have made the decision which he did, and indeed had he seen them on the ground he would have been in a better position than we are to ensure that the work of NYAS and Dr Willemsen was coordinated, so that there was no duplication and G did not feel crowded out with additional experts.

16. The only point on which, speaking for myself, I part company with NYAS in this case is its suggestion that the case should be transferred to the High Court. I fully understand that in some difficult cases, particularly where parents feel that they are in control rather than the court, the authority of the High Court and the powers which the High Court has over and above those of the county court are sometimes more valuable, particularly if the High Court judge can provide judicial continuity and be available all the time. But in my judgment this is a county court case and furthermore I see absolutely no reason why HHJ Yelton should not retain it, notwithstanding the fact that I would reverse him on this particular point.

17. His advantages are firstly that he is local. He is likely to be on the circuit and therefore accessible and, secondly, there is in my view no reason why he should not hear the case fully, fairly and properly if it has to come back to him. In my judgment, he is the most likely person to provide judicial continuity on the facts of this case. Nothing in what he said in the interlocutory judgment which we are considering disqualifies him in any way from dealing with the case, and ready access to the judge if it is necessary is in my view a critical factor in the equation in this sort of case.

18. For all those reasons therefore, speaking for myself, I would allow the appeal, permission effectively having been granted at the outset of the argument. I would like to add that I congratulate Mrs P, as she now is, on the change of attitude which has taken place since counsel put in her skeleton argument. Mrs P's position has always been that G should have a relationship with her father but the difficulty in that position has always equally been that Mrs P, perfectly naturally, retains very strong feelings about Mr H's conduct towards her during the course of their relationship, which was a brief one, and which ended very shortly after G's birth. To overcome those feelings is very difficult, and I am reasonably confident that she requires professional help in the form of Dr Willemsen to do it. The fact that she is today adopting a neutral position in relation to this appeal and not opposing it is, in my view, a very helpful prognosis for the future.

19. Everyone who practises in this jurisdiction knows that contact works best when there is cooperation between the parents, where parents can be helped over the difficulties which they have in relation to each other and their previous relationship, and the fact that Mrs P does not actively oppose this appeal but is neutral in it is, in my view, a very helpful point into the future. Equally, Mr H must recognise that there is still a lot of baggage around from the previous relationship and that he has to play his part in facilitating the contact, which may indeed mean, with Dr Willemsen's help, himself recognising his errors of behaviour in the past and if necessary apologising for them. If between them Dr Willemsen and Mrs Provan, and Dr Willemsen in this respect in particular, can assist the parents to co-operate with each other, and if Mrs Provan can reassure G, speaking for myself I see no reason why contact should not be capable of being resumed, if necessary, without further assistance from the judge.

20. So having given permission to appeal, I would allow the appeal. I would join NYAS as a party to these proceedings as G's guardian. I would make a direction that NYAS, in the person of Mrs Provan, discuss and agree with Dr Willemsen the programme of work with G and the parties designed to facilitate the reinstatement of face-to-face contact between G and her father. I would also direct that Mr H should have such contact with G as is agreed between the parties on the advice of Dr Willemsen and NYAS, but in the event of disagreement I would give liberty to all parties, including NYAS, to apply for further direction.

21. That therefore is the order I would propose.

22. LADY JUSTICE ARDEN: I agree. In this matter HHJ Yelton refused the father's application that the child be joined as a party to the proceedings and NYAS be appointed to act as her guardian. It was a question for the exercise of his discretion whether to make that order. That was an exercise of discretion in a family matter, and indeed on a case management matter, and as a matter of established law decisions as to the exercise of discretion in those sort of matters are to be left to the judge, with very limited grounds to challenge those decisions in this court. The law takes the view that the judge will have known more about the circumstances of the case than this court and that this court should accordingly not interfere with his decision, except for instance where there has been an error of principle.

23. I am satisfied that in this case there were errors of principle. In the first place, the judge concluded the issue before him decisively, without leaving the door open for further material to be filed showing the benefits of joinder of NYAS. In my judgment, it was an error of principle for him to do this on the limited information that he had. It meant that the parties did not have liberty to apply to him when they had further information showing the benefits that could be obtained. If the judge had made his order on the basis that the matter could be brought back to him under a liberty to apply, there would have been no need for the parties to come to this court, and there would then have been no need for the delay which the application to this court has inevitably involved.

24. There is a second error of principle in my judgment. In this case the father has to work on his relationship with his daughter without the advantage of physical sight, and in those particular circumstances it must be a relevant consideration whether he would obtain benefits from having a professional present for instance at meetings with his daughter to advise him. This factor is not referred to by the judge but I am satisfied on the submissions that I have heard that there are benefits to be obtained by having NYAS present for that very purpose. The judge did not consider this point and, accordingly, it must therefore be an error of principle which is sufficient to invalidate the exercise of discretion.

25. In those circumstances it falls to this court to exercise the discretion that was available to the judge. I agree with the order that my Lord proposes for the reasons that he gives. I additionally agree it is not appropriate for the reasons that he has given that this matter should be transferred to the High Court.

26. I agree with the directions my Lord proposes and in addition would make any necessary direction to ensure anonymity of the child and her parents and to ensure that this matter is referred to by its initials only.

Order: Application granted. Appeal allowed.