J (A Child), Re

When deciding a child’s future living arrangements, a judge must consider not only the position at the hearing and the desired future arrangements, but also why the present position arose. That includes investigating a parent’s change of stance, the history and operation of an earlier order, and whether the reasons for varying it are justified.

A judge may control irrelevant or time-wasting cross-examination, but must permit focused questioning needed to put a party’s case and conduct the welfare inquiry fairly. Preventing that inquiry can deny a fair hearing to both the parent and child. The appeal was therefore allowed and a re-trial ordered.

The father appealed in long-running proceedings under Part II of the Children Act 1989 concerning his son’s residence and contact arrangements. The Recorder discharged an earlier shared residence order, ordered that the child live with the mother, and reduced the father’s contact.

The father alleged that the hearing had been unfair because the Recorder curtailed questioning of the mother about the history of contact difficulties and her reasons for seeking a substantial change. He also challenged the treatment of the earlier order, the shared residence issue, the CAFCASS evidence, and the adequacy of the reasons. The central issue was whether the Recorder could treat the arrangements at the hearing as the starting point without investigating how they had arisen.

1. Disposition. Munby LJ delivered the judgment, with Lewison LJ and Maurice Kay LJ agreeing. The appeal was allowed and a re-trial ordered before a different judge, preferably a Circuit Judge experienced in family cases.
2. Fair hearing. The Recorder was entitled to look to the future and to consider the position at the hearing. He fell into plain and obvious error, however, by refusing focused cross-examination about why the present position had arisen. The questioning was directed to the mother’s change of attitude and to why the arrangements agreed in January 2008 had failed or were said to require alteration.
3. Scope of inquiry. A consent order in family proceedings does not have the same status as a consent order in ordinary civil proceedings. It nevertheless provided an important and legitimate starting point for investigating the mother’s reasons for seeking a different regime, particularly in light of the earlier professional reports. Preventing that investigation disabled the Recorder from carrying out the task required of him and denied both the father and the child a fair hearing.
4. Shared residence. The court referred to the jurisprudence in A v A (Shared Residence) [2004] EWHC 142 (Fam), [2004] 1 FLR 1195, Re W (Shared Residence Order) [2009] EWCA Civ 370, [2009] 2 FLR 436, and T v T (shared residence) [2010] EWCA Civ 1366, [2011] 1 FCR 267. It did not add to that jurisprudence. If the Recorder had treated parental harmony as necessary for a shared residence order, that would have been an error, but the court did not read his judgment as taking that approach. The issue was left for the re-trial.
5. Evidence and reasons. The later CAFCASS report was short and did not engage with the earlier reports or explain why subsequent events justified departing from the January 2008 arrangements. A further report might therefore be helpful. The court observed that brevity alone is not a ground of appeal, but a judgment must explain the findings, conclusions, and reasoning process sufficiently. That issue did not require determination because the fair-hearing error was dispositive.

• Court of Appeal (Civil Division): Appeal allowed. The order was set aside and the matter remitted for a re-trial before a different judge.
• Southend County Court: Mr Recorder Bryan discharged the earlier residence and contact orders, ordered that the child reside with the mother, and made reduced contact arrangements.