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P (Children) [2005] EWCA Civ 1066

Application for permission to appeal part of an order which included details of criminal convictions of a person living with one of the parents to a contact dispute. Application allowed.


Neutral Citation Number: [2005] EWCA Civ 1066




(His Honour Judge O'Rourke)

Royal Courts of Justice


London, WC2

Tuesday, 12 July 2005

B E F O R E:


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P (children)

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(Computer-Aided Transcript of the Stenograph Notes of

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The Appellant appeared in person

The Respondent appeared in person

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(As Approved by the Court)

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Crown copyright©

1. LORD JUSTICE WALL: Mr SH seeks permission to appeal against one paragraph of an order made by His Honour Judge O'Rourke, sitting in the Lincoln County Court, on 23 February 2005 in proceedings between Mr CP and his former wife DP, in which Mr P seeks contact with the three children of the marriage. Mrs P is now Mr H's partner. The judge ordered that the details of Mr H's previous conviction - which apparently had been already disclosed by the Lincolnshire Constabulary - were to be placed on the court file and "made available to either party for the proper purposes of this application only".

2. Mr H's case on the papers is that Mr P, since the breakdown of his marriage to Mrs P, has done his best to cause problems between Mrs P and himself. He makes three essential complaints about the order. First, he says he was neither present nor represented when the order was made and accordingly had no opportunity to address the judge on the question. Second, he says his previous record is irrelevant since his last conviction was a number of years ago and none of the convictions has anything to do with children. Thirdly, he argues that Mr P's request to have knowledge of his record is made in bad faith and is part and parcel of a continuing campaign to harass and intimidate Mr H and Mrs P.

3. As I indicated to Mr H a moment ago, I am not on this application concerned with the facts which I anticipate would be in dispute. It seems to me however that the application raises an interesting and important point of law. The judge gave a judgment which is approximately a paragraph long in which he identified the convictions and ordered disclosure. Mr H tells me that disclosure to Mr P has indeed taken place, and his case is that Mr P has abused that disclosure by further disclosure to third parties for improper purposes. That is not a matter before me today. On that, Mr H's remedy is to go back to the judge and inform the judge, on proper evidence, as to what he says has occurred and invite the judge to grant injunctive relief.

4. In my judgment, the case raised by Mr H involves an unusual point of law which merits consideration by this court even though the disclosure has been given. The question can be put in a number of ways. In what circumstances is it appropriate for criminal convictions of a person who is living with one of the parents to a contact dispute to be disclosed to the other parent? What should the practice be? What should the procedural safeguards be? And so on. I know of no direct authority on the point. In my judgment, as I indicated to Mr H in the course of argument, it would be helpful if CAFCASS Legal were to be invited to appoint an advocate to the court to assist the court in dealing both with the practice of obtaining and disclosing the criminal records of parties and their partners in proceedings in relation to children and to deal with the position of CAFCASS in relation to the present application.

5. Mr H is a little out of time but explains why that is. In these circumstances I would propose to extend time and to give Mr H permission to appeal. In my judgment the case should be allocated one half-day of court time. Preferably it should be heard by a three-judge court, but a two-judge court can hear it provided one of the Lords Justices sitting has family experience. I will direct that a transcript of this judgment should be obtained at public expense and that a copy of the judgment and the court papers be sent to CAFCASS Legal with an invitation to instruct an advocate to the court for the purposes I have already identified.

(To appellant) You will get a copy of that in due course and we will notify you of the date. I cannot give you any indication when the date will be. We are coming towards the end of the legal term. It is very unlikely to be this month. If it cannot be fitted into the vacation, it may be October. If you are troubled by what is happening on the ground in the meantime, then your remedy is to go back to the judge.

Order: Application allowed, with a time estimate of half-a-day to be heard by three judges (may be heard by two judges provided one of the Lords Justices has experience of Family law). Transcript of this judgment be provided at public expense and sent to CAFCASS Legal with set of court papers, and invitation to instruct advocate to court