D (A Child), Re

In private children proceedings, an advance trial of factual disputes is justified only where it can be conducted quickly and the findings are essential to determining welfare. Substantial delay may prejudice the eventual contact decision, particularly where direct contact is lost in the meantime. The court must consider advancing welfare issues where delay may otherwise determine the practical outcome. Child and family reporters inform the court about the child’s wishes and feelings and may make welfare recommendations; they must not decide disputed facts. Confidentiality and public interest immunity are distinct, and the public interest in the fair administration of justice may outweigh either objection.

The father applied for permission to appeal procedural orders made in contact and residence proceedings concerning his daughter. The orders adjourned the factual trial, deferred decisions on disclosure of social services records and a psychological assessment, and provided for indirect contact. A later order further adjourned the trial and made limited disclosure of records, so the application was treated as relating to both orders.

The central issues were whether the timetable caused unacceptable delay, whether factual disputes should be tried before welfare issues, whether the child and family reporter had been used to determine disputed facts, and how disclosure and confidentiality should be handled.

1. Permission and urgency. Lady Justice Hale granted permission to appeal against both procedural orders. The appeal was to be listed urgently before Easter because the proposed delay was substantial and might affect the eventual contact outcome.
2. Sequencing factual and welfare issues. Resolving factual disputes first can assist where the findings are essential to deciding the child’s best interests. It is appropriate only if the factual trial can be conducted quickly. A trial recommended in May 2001 but delayed until June 2002 was unsatisfactory. The loss of direct contact during the delay risked allowing delay itself to prejudice the contact application. The court should therefore consider advancing the welfare issues where delay may otherwise predetermine the outcome.
3. Role of the child and family reporter. A reporter supplies information unavailable to the court by other means, principally the child’s wishes and feelings, and makes welfare recommendations based on professional expertise. The reporter should not be used to determine disputed questions of fact.
4. Disclosure and confidentiality. Confidentiality and public interest immunity are distinct. The public interest in the fair administration of justice may outweigh either objection. Information disclosed in children proceedings remains confidential. It may be reasonable to seek reassurance about proposed recipients where a litigant in person wishes to share it with a lay McKenzie friend, although no concluded view was expressed on that issue.
5. Order. Application granted. A transcript was ordered to be made available at public expense to both parties.

• Court of Appeal (Civil Division): permission to appeal granted against procedural orders made in the Warrington County Court. The proposed appeal concerned orders dated 5 December 2001 and 4 February 2002. [2002] EWCA Civ 340
• Warrington County Court: the factual trial was adjourned, disclosure and psychological assessment issues were deferred or limited, and indirect contact was ordered.