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AMV v RM [2012] EWHC 3629 (Fam)

Judgment, in appeal by mother against residence order, relating to the decision of the district judge to visit the homes of the mother and the maternal grandparents in order to ascertain the veracity of the mother's claims as to residence.

[2012] EWHC 3629 (Fam)

Royal Courts of Justice
Thursday, 28th June 2012


(In Private)

B E T W E E N :

AMV Appellant

-  and  -

RM Respondent


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MR. R. HARRISON QC  (instructed by Alexiou Fisher Phillips) appeared on behalf of the Appellant.

MISS J. ECOB  (instructed by M & M Solicitors) appeared on behalf of the Respondent.


(As approved by the Judge)

1 This matter comes before me as an appeal from a District Judge in the context of an application as to the future care of two very young children.  One of the issues with which the District Judge was concerned was where the mother and children were actually residing.  The mother asserted that her primary home was a rented three bedroom house in London.  She accepted that she spent some time with her parents in their three bedroom council property which was situated fairly close by.  That had been the home to which the mother and the two children had originally fled when the marriage ended.  The father did not accept the mother's evidence as to her main home.  He believed the mother was essentially living with her parents and he was concerned about the standard of living accommodation at the maternal grandparents' property.  It matters not for the purposes of this judgment whether father or mother were correct or whether this was the central issue in the case. 

2 The reason I am giving this short judgment is to deal with the manner in which the Judge decided to determine the housing issue.  The contested Residence hearing, was fixed for one day and after opening, the District Judge, of her own motion, decided that it would be appropriate to have unannounced site visits to the mother's property and that of the maternal grandparents in order to assist her with the determination of the issue as to mother's primary residence.

3 The Judge made this suggestion in the face of the court and gave the mother with her legal representative some 15 minutes to decide whether they agreed with this course of action.  At the conclusion of the permitted short adjournment, the mother's adviser informed the court that she would agree to a site visit to her own home but she had not been able to contact her parents to determine whether they were agreeable or not.

4 In the light of this information, the Judge simply decided to visit both establishments and immediate arrangements were made for the parties involved to travel to the two properties.  The District Judge travelled in the motor car of the husband's counsel, accompanied by the mother and the CAFCASS officer.  The mother's counsel was a passenger in the father's car.

5 I was informed that there was no discussion about the case whilst the various parties were in the cars.  All parties duly arrived at the mother's house, were permitted entry and apparently combed the premises, opening doors, looking in cupboards and fridges, even looking in wastepaper baskets.  I was told that the District Judge had specifically looked into a dustbin and, as a result, made an express finding, arising from this as to the likely occupancy of the house.

6 On completion of this outing, the parties (still in the two separate cars) drove to the maternal grandparents' property.  On arrival they were given admittance.  The maternal grandparents were to an extent taken by surprise.  They did not have independent legal advice.  The process of investigation, as already described, then took place in their home, with doors being opened, the contents of drawers being investigated and the like.

7 The parties returned to court.  The entire outing took about one and a half hours.  The District Judge made findings in reliance upon what had been seen - indeed, a great deal of cross-examination of the CAFCASS officer took place on the basis of counsel's perception of the state of the two homes.

8 To my mind, this entire procedure was wholly unacceptable.  In the first place, it was a suggestion which came within or shortly after the opening of the case and did not permit time for proper consideration of the implications.  In reality it gave the mother and her adviser little effective choice but to agree for fear that a negative response would draw an adverse inference from the court.  It was, in effect, litigation by ambush.

9 Although I have not been addressed in detail by either counsel, it would also seem to me it was, prima facie, a breach of the mother's Article 6 rights to a fair trial.  It is not the role of a judge in such a situation to play detective and enter a person's home.

10. More importantly this Judge entered the home of a third party in order to elicit evidence.  Prima facie, that was a breach of the maternal grandparents' Article 8 rights. To my mind, a judge's job is to consider the facts presented, weigh up that evidence after cross-examination, make findings and a determination.  If the methodology adopted by this District Judge was correct, it would lead inevitably to breaches under the ECHR.  A Judge cannot seek to determine who is telling the truth by a surprise or unannounced visit in relation to disputed facts.  That is not an appropriate way to litigate.  Moreover, the method of approaching third parties and seeking entrance into their home in those circumstances as I have stated left them with effectively no choice.  I doubt that they felt that they had any alternative but to open their front door and make the Judge, counsel, their daughter and their former son-in-law welcome in their flat.  The District Judge found their home was cramped, dirty and untidy.  Hardly a matter which was appropriate in all the circumstances.

10 I consider that it is inappropriate for any District Judge to seek to deal with a case in this manner.  Especially as the site visit came at the Courts suggestion without any or any sufficient time for mature reflection let alone legal advice.  If there are real concerns that children are not being cared for properly (and that was not an issue in this case) it is a matter that can be dealt with by social services who are entitled to, and do make, regular unannounced visits.  I deprecate the method used by the District Judge and would urge that nothing similar occurs in the future.

11 That is my judgment on that point.