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H (A Child) [2012] EWCA Civ 714

Appeal in private law children proceedings concerning, amongst other matters, discussions taking place between counsel and the judge. Appeal dismissed.

This was an appeal by a father against a decision that was made in private law proceedings concerning his seven-year old son, W.  The decision of the Judge at first instance had been to shorten the father's weekend staying contact.  The contact had originally been from after school on Friday to school on Monday and, in accordance with the recommendation of W's NYAS Guardian and W's own wishes and feelings, Her Honour Judge Raeside had reduced that contact so that it started on a Saturday morning instead of after school on Friday.

The father's first ground of appeal concerned a discussion that had taken place between all three counsel in the case and the Judge prior to the hearing at which the decision being appealed had been made.  This had been a short discussion in Court on a counsel only basis at which the Judge had agreed that the parties could have further time for discussion and the hearing would be dealt with on submissions.  The father complained that this discussion had breached his Article 6 rights.  However, having considered the agreed note of this hearing prepared by counsel, and endorsed by the Judge, the Court of Appeal were satisfied that nothing improper had taken place.

The second ground of appeal was that the Judge should not have followed the recommendation of the Guardian and reduced the weekend contact.  This judgment quotes from the Guardian's report which included the expression of W's wishes and feelings, and the Guardian's conclusion that these were W's own wishes and feelings and not those of his mother.

The Court of Appeal concluded that the Judge had not erred in following this recommendation. They rejected the father's submission that she had not properly considered the effect of a change in the established pattern of contact.  Thorpe LJ, giving the judgment in this case, observed that he was in no doubt that these matters were borne in mind by the judge, and were implicitly implied, though not explicitly, in her conclusion.

Summary by Sally Gore, barrister, 14 Gray's Inn Square

Case No: B4/2011/2539
Neutral Citation Number: [2012] EWCA Civ 714

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 3 May 2012


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(DAR Transcript of
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Miss C Davies (instructed by Laceys) appeared on behalf of the Appellant Father.

Miss Fiona Edington (instructed by Grant Sols) appeared on behalf of the First Respondent, the Mother.

Miss Katherine Andrews (instructed by NYAS) appeared on behalf of the Second Respondent, the child by his Guardian.

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(As Approved by the Court)

Crown Copyright ©

Lord Justice Thorpe:
1. This is an appeal from the decision of Her Honour Judge Raeside of 9 September 2011 in the Guildford County Court on a relatively minor dispute between the parents of a seven-year-old boy W.  The case had apparently been labelled "half-hour appointment" in error, when in fact a day had been allowed for the judge to decide on outstanding issues.  The case had a considerable litigation history and a number of judges had at various points since 2008 made orders, including Judge Rylance whose last order was the foundation and from which variation was either being sought or was being discussed between the parents and their litigation team.   Fortunately for W, he had the advantage of guardianship through NYAS representation, so before court on that day there were three counsel, one for each of the parents and one for W. 

2. We have a clear picture of what happened on 9 September, because the judge has recorded her recollection in a statement of 24 April and that recollection is accepted by the three members of the Bar who appeared before her.  How did that note come to be prepared?  Well, there were two issues ultimately decided by the judge.  One was as to the Christmas arrangements, which she decided against the mother.  The other was in relation to the duration of alternate weekend contact, which she decided against the father. Accordingly, an application for permission was filed in this court on 30 September, supported by grounds and skeleton argument written by the father as a litigant in person.  From there he proceeded to an oral hearing before a single Lord Justice, McFarlane LJ, on 18 January.  Having heard the father, assisted by his brother who is a solicitor with much experience in family law, the judge granted permission and he made a direction that a transcript of the hearing before Judge Rylance was to be obtained at public expense and served on the parties; and that:

"2. if the meeting between counsel and the judge in the judge's chambers prior to the hearing in court was tape recorded, a transcript of that meeting is also to be prepared at public expense.  If that meeting was not tape recorded, all three counsel present are to use their best endeavours to prepare a note of what was said during the meeting; thereafter counsel's note is to be submitted to [the judge] for her approval before being served on the parties and submitted to the Court of Appeal."

3.  It transpired that, as a result of error, the recording was not switched on during the meeting between the Bar and the judge.  Accordingly, the three counsel prepared a note, which they submitted to the judge.  The judge's record emerges from her comment on the agreed note, and we are told this morning that all three counsel are content with the judge's record.  So the record reads thus:

"1. The parties had been negotiating until 11.45 but indicated through the usher that they required more time to negotiate.  The Judge was ready to hear the case and had the remainder of the day available to hear it. ...

2. The hearing was in the Court Room.  The Judge assumed that the tape recorder had been switched on but it now appears (through...administrative oversight...?) that it was not. ...

3.  The Judge invited counsel to comment on whether the matter was to be dealt with by submissions or whether she was going to be asked to hear evidence.  This would impact on whether the Judge could allow more time for negotiations.  All counsel agree that the matter would be dealt with by submissions, and on that basis the Judge allowed the parties further time to negotiate."

4. The submission advanced to McFarlane LJ, not emerging in the grounds or the skeleton written by Mr Harding, was that the discussion between the Bar and the judge was impermissible and a breach of Mr Harding's Article 6 rights.  In support of that submission McFarlane LJ was referred to the case of re Z [2009] 2 FLR 877.  As the issue was presented to McFarlane LJ, I well understand why he granted permission, feeling that the procedure in the court on 9 September needed further investigation to determine whether or not there had been some breach of the rules of natural justice.  Now we have the reality revealed to us by compliance with the second paragraph of the direction, I am completely satisfied that all that the judge did on 9 September was not only permissible but sensible and consistent with the general approach of judges in the trial courts to case management where the parties are engaged in lengthy negotiations which threaten to prevent the completion of a contested issue in the time permitted.

5. The case before us today has been extremely skilfully and attractively argued by Ms Davies, who overcame criticisms of the delay in compliance with the directions of McFarlane LJ with considerable charm and self-possession, and it is thanks to her unruffled aid in supplying the missing materials that we have been able to see relatively quickly what we would have seen clearly had the documents been provided to us in time for earlier preparation.  So for that I express my personal gratitude and focus on the other point which is urged by Ms Davies, that the judge has impermissibly focused on only one aspect of the check list which is there to aid the judge in arriving at a balanced and complete welfare decision.

6. What was the issue?  The issue was quite simple.  Should the well established pattern of alternate weekend contact from after school on Friday to commencement of school on Monday persist or should there be a diminution so that contact commenced on Saturday morning?  The judge had the advantage of a clear report from the NYAS guardian and it quite rightly played a large part in the judge's determination.  It appears in this extract from the report of the guardian:

"Where W is uncomfortable with the present pattern is that he says he finds it difficult to manage alternate weekends from after school on Friday until school on Mondays.  He points out that this pattern results in his not seeing his mother between Friday morning and Monday evening.  He does not feel happy with that 'because I like my Mummy so much'.  He would prefer contact to begin on Saturday mornings and end with his father taking him to school on Monday mornings."

7. This, of course, is a clear representation of W's wishes and feelings.  But that was not the only basis upon which the guardian made his recommendation, for we see in a following paragraph the guardian writing:

"I believe that these are his thoughts rather than those of his mother.  By implication, he would feel more comfortable in contact with his father were that change to be made."

And then later in the same paragraph, in relation to detriment in planned activities, the guardian commented:

"That, again, may be part of the competition for W's time rather than a reflection of his welfare needs."

So it is apparent to me that the judge, in adopting these recommendations and their explanation, was looking at the issue from a proper welfare perspective and naturally giving very great weight to the wishes and feelings of W.

8. Ms Davies has said that she should also have considered the effect of change, the difficulty of settling into contact if it were abridged and the impact on his development given that time with his father was important, as were the Friday evening activities.  I am in no doubt at all that all those factors were within the judge's mind and implicitly emerge from her conclusion.  So, despite the able presentation, I would not find any legitimate basis for criticising the judge below, who plainly heard submissions from all three counsel at some length, as is demonstrated by 18 pages of transcript.  She arrived at a clear conclusion, which she clearly expressed.

9. For those reasons, I would dismiss this appeal.

Lord Justice Laws:  
10. I entirely agree with what my Lord has said about both grounds of appeal, which I too would dismiss.

Order: Appeal dismissed