B (A Child)

In child-contact proceedings, whether an existing guardian should be replaced is a discretionary decision. An appellate court should not interfere where the judge acted within the discretionary ambit and considered the child’s welfare, the guardian’s long involvement, the value of continuity and the burden of requiring the child to repeat her views. A judge may form and express views during ongoing proceedings without prejudging a later substantive application, provided that application is determined on its merits. Long-term restoration of the parent-child relationship may be more important than short-term procedural developments.

The father appealed from an order of the Derby County Court dated 10 December 2008. The proceedings concerned contact with his 14-year-old daughter after a decade of litigation. The father sought the replacement of the existing guardian, Mrs Jones, with NYAS. The judge refused that application and declined to pursue a further approach to NYAS after the father objected.

The appeal also raised an issue concerning the listing of an application to discharge a prohibited steps order before a district judge. The central questions were whether the judge had exceeded his discretion in retaining the existing guardian and whether his expressed views demonstrated prejudgment.

1. Appeal dismissed. The Court of Appeal unanimously held that the judge’s decisions were within his discretion.
2. As to the challenge concerning the order of 10 October 2008, the court noted that a district judge had authority to terminate the prohibition prematurely. There was no transcript or note establishing the first-instance judge’s reasoning. The application had subsequently been placed before a district judge and was adjourned pending the Court of Appeal’s decision. The prohibition was also due to expire shortly. That ground therefore provided no basis for intervention.
3. The refusal to replace Mrs Jones with NYAS was a discretionary decision concerning the management and welfare of the child’s ongoing proceedings. The judge had tried to identify an organisation that might assist in restoring contact, including by inviting NYAS to intervene and by considering a further approach after NYAS initially declined involvement. The existing guardian’s long participation in the case and established relationship with the child were relevant. Replacing her would have required the child to start again with a new guardian and could have placed additional pressure on her. The decision to retain Mrs Jones was therefore plainly within the discretionary ambit.
4. Wall LJ rejected the submission that the judge had prejudged the substantive contact application. A judge dealing with proceedings involving an older child was entitled to form and express views. Any later application would have to be determined on its merits, rather than by reason of any lack of integrity on the judge’s part.
5. Holman J agreed with the reasons of both Lords Justice. The order was: appeal dismissed.

1. Court of Appeal (Civil Division): The appeal from the order dated 10 December 2008 was dismissed unanimously.
2. Derby County Court: HHJ Orrell refused the application to replace the existing guardian with NYAS and made related procedural directions.