C (Children)

An appellate court should not interfere with a discretionary family-law decision unless the judge was plainly wrong or improperly conducted the balancing exercise. Where children make extreme allegations against an absent parent which are found exaggerated or untrue, possible alienation by the primary carer requires investigation. A guardian may examine communications with elected representatives if they may illuminate that issue. Privacy in correspondence with an MP is protected by Article 8 of the European Convention on Human Rights, but disclosure may be lawful, necessary and proportionate where it protects children’s well-being. Limiting initial disclosure to the guardian may satisfy proportionality.

The father appealed from a disclosure order made by Her Honour Judge Wright in private law proceedings concerning the welfare of his three children. Earlier orders prohibited the parents from arranging interviews or obtaining reports about the children’s wishes and feelings without the guardian’s or solicitor’s knowledge and consent. The judge later ordered the father to disclose letters and e-mails exchanged with an MP and a local councillor. The appeal challenged the order on privacy, confidentiality, proportionality and relevance grounds. The central issue was whether the judge had been plainly wrong or had mishandled the discretionary balancing exercise.

1. Disposition. Permission was granted. Lord Justice Thorpe’s reasoned judgment states that the resulting appeal was refused, but the formal order records application granted and appeal allowed. The supplied judgment therefore contains an apparent inconsistency on the final disposition.
2. Appellate restraint. The issue was whether the judge was plainly wrong or had misconducted the balancing exercise required when reaching a discretionary conclusion. The judge had properly understood and balanced the competing submissions. Her order was not open to challenge on the broader grounds advanced.
3. Possible alienation. Where children make extreme allegations against an absent parent which the judge finds exaggerated and untrue, the possibility of alienation by the primary carer is large and requires investigation. The guardian was entitled, and in the circumstances bound, to investigate whether communications with the father’s MP and a local councillor shed light on that issue.
4. Interviews by elected representatives. A parent may discuss his predicament with an elected representative. Great care is nevertheless required before a Member of Parliament agrees to interview children in family proceedings to ascertain their wishes and feelings. That issue is assigned by Parliament to the court, assisted by an independent CAFCASS officer or guardian ad litem. The appointment and duties of the guardian arise under the Children Act 1989 and Rule 9.5.
5. Article 8. Lady Justice Arden added that correspondence with an MP falls within Article 8 of the European Convention on Human Rights, but the right is qualified. Interference must be in accordance with law, necessary in a democratic society for a relevant objective including the children’s well-being, and proportionate. CPR 31 supplied the legal basis, and initial disclosure to the guardian alone met the proportionality requirement.
6. Practice guidance. It was no part of a court usher’s duty to photocopy authorities for counsel, and doing so was not a proper charge on court resources.

• Court of Appeal (Civil Division) — In [2010] EWCA Civ 239, the court granted permission. Thorpe LJ stated that the resulting appeal should be refused, while the formal order records application granted and appeal allowed.
• Bow County Court — Her Honour Judge Wright ordered the father to disclose letters and e-mails exchanged with an MP and a local councillor, with disclosure initially to the guardian’s solicitor.