W (A Child)

In child-contact proceedings, a court must decide on material evidence and submissions that all parties have had an equal opportunity to know and test. Written statements and correspondence do not ordinarily replace oral evidence and cross-examination where the parties’ accounts are materially disputed. A private judicial conversation with a guardian about evidence, followed by refusal to permit cross-examination, can render a hearing unfair even if its substance is later relayed. The need to avoid delay and distress does not remove procedural safeguards, particularly where orders restrict direct contact and bar further applications for a lengthy period. The appropriate appellate response is to set aside the orders and remit the issues for a fresh hearing without expressing a view on their merits.

Long-running proceedings concerned T and arrangements for contact with his father. On 18 December 2009 HHJ Horowitz made an order for limited direct and indirect contact and a Children Act 1989 section 91(14) restriction lasting until 17 December 2011. The father appealed, challenging the contact arrangements and the procedure adopted, including the refusal of an adjournment and cross-examination and the judge’s private telephone conversation with the guardian. The central issue was whether the orders could properly be made at a directions review on papers and submissions when the guardian’s evidence and the parties’ explanations for the failure of contact were disputed.

1. Appeal allowed. The orders made on 18 December 2009 were set aside. The Court of Appeal expressed no view on the merits of the parties’ respective cases concerning contact or the section 91(14) order.
2. Lady Justice Black held that the hearing was procedurally irregular. The dispute between the father and the guardian was potentially important to the outcome and would ordinarily require examination through oral evidence and cross-examination. The available correspondence and written submissions were not an adequate substitute because the parties’ positions were polarised and the material did not provide definitive answers.
3. The judge’s private telephone conversation with the guardian was unfair. It enabled the judge to obtain further assistance on matters relevant to the decision without the father being able to put his own questions to the guardian. Relaying the substance of the conversation afterwards did not cure that procedural defect. Lord Justice Rimer agreed, emphasising the basic requirement that parties must have equal knowledge of material relied upon by the judge and a fair opportunity to test it. Lord Justice Mummery agreed with both judgments.
4. Although concern for the child, delay and distress may sometimes justify proceeding urgently or on less evidence, those considerations did not justify the procedure adopted here. The hearing had been listed as a one-hour directions review but became a final hearing. The orders were particularly serious because infrequent direct contact was combined with a Children Act 1989 section 91(14) restriction which could prevent variation for two years. Appropriate procedural safeguards were therefore required.
5. The matter was remitted for directions and a full evidential hearing before a different judge in a county court local to the parties. The Court of Appeal declined to appoint a facilitator in place of the guardian before the criticisms of the guardian’s role had been examined.

• Principal Registry of the Family Division: HHJ Horowitz QC made orders on 18 December 2009 providing for limited direct and indirect contact and imposing a Children Act 1989 section 91(14) restriction.
• Court of Appeal (Civil Division): The appeal was allowed. The orders were set aside and the matter was remitted for a fresh hearing before a different judge.