H (A Child)

In difficult child-contact proceedings, a judge asked to involve an organisation as the child’s guardian should not determine the application finally on limited information where the relevant criteria are met. The court should provide the papers to the organisation and invite its views. A refusal may be an error of principle where the judge fails to consider relevant benefits, including professional assistance tailored to a parent’s disability, or assumes that the proposed involvement duplicates existing expert work without examining the respective roles. On appeal, the Court of Appeal may exercise the discretion afresh. Judicial continuity and ready access to the existing county court judge may justify retaining the case there rather than transferring it to the High Court.

The father applied for contact with his daughter, G, in proceedings involving the child’s mother. Following earlier CAFCASS involvement, the parties agreed that a psychologist should advise on contact. The father later applied for G to be separately represented and for the National Youth Advocacy Service to be appointed as her guardian. HHJ Yelton refused the application, accepting that the relevant criteria were met but considering that further professional involvement would create unnecessary duplication and delay.

The father sought permission to appeal. The central issues were whether the judge had erred in principle by deciding the application without obtaining NYAS’s views and by failing to consider the benefits of professional assistance in light of the father’s severe visual impairment, and whether the proceedings should be transferred to the High Court.

The Court of Appeal unanimously granted permission and allowed the appeal. It joined NYAS as a party to the proceedings and appointed it to act as G’s guardian.

1. Errors in the exercise of discretion. The decision whether to join a child and appoint a guardian is discretionary and case-management decisions are ordinarily left to the first-instance judge. However, appellate intervention is justified for an error of principle. The judge erred by deciding the application finally on limited information, without leaving the matter open for further material or inviting NYAS to respond.
2. Proper procedure. Where the criteria for NYAS involvement are clearly met, the judge should ordinarily allow the papers to be shown to NYAS and invite it to state whether it is willing to act and how its involvement could operate. NYAS might decline the invitation and give reasons. Consultation would have enabled the judge to assess the practical benefits and avoid unnecessary delay.
3. Relevant considerations. The judge also failed to consider the benefits of professional assistance for the father, who was severely visually impaired and required sensitive help in developing his relationship with his daughter. That omission was an error of principle sufficient to invalidate the exercise of discretion.
4. Complementary professional roles. NYAS’s social-work role in supporting the child and gaining her confidence was distinct from the psychologist’s role in helping the parents address their hostility and longstanding differences. The two roles were complementary rather than duplicative. The court retained overall control of the proceedings.
5. Transfer and directions. The case was appropriately retained in the county court. The existing judge was local, accessible and well placed to provide judicial continuity, and nothing in his interlocutory judgment disqualified him. NYAS was directed to agree a programme of work with Dr Willemsen, with contact to proceed as agreed on their advice and liberty to apply for further directions if necessary.

• Court of Appeal (Civil Division): In [2006] EWCA Civ 896, permission was granted and the father’s appeal was allowed. NYAS was joined as a party and appointed to act as the child’s guardian.
• Southend County Court: HHJ Yelton refused the father’s application for the child to be joined and for NYAS to act as guardian.