J (A Child), Re

Where a person has been joined as a party to care proceedings, even for a limited fact-finding purpose, party status is not automatically confined to that hearing. The party may have a prima facie right to attend and be represented at another hearing which may materially affect the later case. A transcript may be inadequate where the later assessment depends on observing witnesses and evidential nuances not captured in the judgment. Once other parties are permitted legal representation, a witness’s anxiety about additional lawyers will not ordinarily justify excluding the joined party or representative. The permission may extend to the party’s own attendance, not merely representation.

The applicant, the maternal grandmother of a child involved in consolidated private contact and care proceedings, was joined as a party for a later perpetrator fact-finding hearing because she was within the pool of possible perpetrators and might become the child’s carer. The county court directed that she and another intervenor could not attend or be represented at an earlier rape fact-finding hearing involving the child’s parents, although the local authority and guardian could attend with lawyers. The applicant appealed, arguing that the earlier hearing could affect the later fact-finding and care decisions, and that a transcript would not provide equivalent protection. The central issue was whether her joinder entitled her to attend or be represented at the earlier hearing.

1. Appeal allowed. Sir Mark Potter held, with Lord Justice Hooper and Lord Justice Lloyd agreeing, that the applicant should be permitted to attend or be represented at the rape fact-finding hearing.
2. The applicant’s joinder for the later perpetrator fact-finding hearing gave her the status of a party in the proceedings generally. Her interests were narrower than those of the local authority and guardian, whose duties required them to consider the child’s best interests, but they extended beyond the immediate issue of whether she was a possible perpetrator.
3. If exonerated, the applicant might be considered as a carer. The later assessment of the mother and father could depend not only on the outcome of the rape allegation but also on the surrounding evidence, the quality of their evidence and their demeanour. The rape hearing could therefore affect the presentation and determination of the applicant’s later case.
4. There was a clear prima facie case for the applicant to attend or be represented. It was unnecessary to decide whether that entitlement arose as an aspect of Article 6 rights. A transcript would not necessarily convey the nuances of evidence or the impressions obtained by seeing and hearing witnesses, and was therefore insufficient protection in the circumstances.
5. The mother’s wish to avoid additional lawyers did not justify exclusion, particularly since the judge had accepted that the local authority and guardian could be represented. The applicant herself could attend if she wished, in addition to her representative. The order excluding her was set aside and the appeal was allowed.

1. Court of Appeal (Civil Division) — On 12 February 2008, allowed the appeal against the order of HHJ Graham Dowse dated 1 February 2008.
2. Kingston-upon-Hull County Court — Directed that the applicant and another intervenor could neither attend nor be legally represented at the rape fact-finding hearing, while the local authority social worker and the child’s guardian could attend and be represented.