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Re H (A Child) [2006] EWCA Civ 896

Father’s appeal against refusal to appoint NYAS as child’s guardian allowed.

Court of Appeal: Arden and Wall LJJ (9 June 2006)

Father's appeal against refusal to appoint NYAS as child's guardian allowed.

The parties were the mother and father of a child, born in November 1997; their relationship was brief, and ended very shortly after the child's birth. There was a lengthy history of litigation concerning contact. In September 2005, at a hearing before the district judge, the parties agreed that they would jointly instruct a psychologist to advise on the issue of contact, but he was not instructed until November. Also in November, an application was made to the judge for the National Youth Advocacy Service (NYAS) to be instructed.

The judge accepted that the criteria for the appointment of NYAS were met, in accordance with the President's Practice Direction of 22 April 2004, but said that it was ultimately a matter of discretion for the court; he concluded that 'it would not be right for NYAS to be appointed because … 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'. Accordingly, the judge did not think that the child needed to be separately represented, and refused the application; the father appealed.

Held, allowing the appeal, that the judge had wrongly concluded that NYAS should not be appointed.

The court considered that, in a case such as this, where the criteria for involving NYAS were 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. If the judge had seen the material which had been before the court, his decision was likely to have been different. Equally, if he had made his order on the basis that the matter could be brought back to him under a liberty to apply, this appeal – and the inevitable delay that it caused – would not have been necessary.

Further, the judge's worry about over-manning or duplication was unfounded, as NYAS would be essentially concerned with the welfare of the child and gaining the child's confidence and helping the child in this very difficult situation; the psychologist's role, on the other hand, was very much more towards helping the parents come to terms with the long-standing and, indeed, outstanding differences between them and their mutual hostility which had undoubtedly adversely affected the child. The need for sensitive professional involvement was increased by the fact that the father's sight was severely restricted.

The court, therefore, exercised the discretion that was available to the judge, and joined NYAS as a party to the proceedings as the child's guardian; it gave directions for NYAS to discuss and agree with the psychologist the programme of work with the child and the parties designed to facilitate the reinstatement of direct contact between the child and her father; and it directed that the father should have such contact with the child as was agreed between the parties on the advice of the psychologist and NYAS, but in the event of disagreement all parties, including NYAS, were at liberty to apply for further direction.

Digest prepared by Peter Smith, Barrister

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