H (A Child), Re

Case-management discussions between a judge and counsel during ongoing negotiations are permissible where they assist the court to determine whether the matter should proceed by submissions or evidence and whether further negotiation time can properly be allowed. Such a discussion does not, without more, breach Article 6 or natural justice.

In a child welfare decision, a judge may give very great weight to the child’s wishes and feelings. An appellate challenge based on omission of other welfare factors will fail where the judge’s clear conclusion shows that those factors were within the judge’s mind and were implicitly considered.

The father appealed from a decision of Her Honour Judge Raeside in the Guildford County Court dated 9 September 2011 concerning arrangements for contact with his seven-year-old son. The judge had retained the established alternate-weekend arrangement in a modified form, beginning contact on Saturday morning rather than after school on Friday.

The father challenged a prior discussion between counsel and the judge about whether the matter would be dealt with by submissions or evidence, alleging procedural unfairness and breach of Article 6. He also argued that the judge had focused on the child’s wishes and feelings without properly considering the wider welfare consequences of reducing contact.

Appeal dismissed. Lord Justice Thorpe gave the judgment, with which Lord Justice Laws entirely agreed.

1. The procedural complaint was not made out. Permission had been granted after the court was referred to [2009] 2 FLR 877 and considered that the hearing procedure required investigation. The agreed record showed that the judge had been ready to hear the case, asked counsel whether evidence would be required, and allowed further time for negotiations on the basis that submissions would determine the issue. That was permissible and sensible case management, consistent with the general approach of trial judges where negotiations threatened to prevent completion of a contested issue within the available time.
2. The welfare challenge also failed. The judge had the benefit of a clear report from the NYAS guardian and adopted the guardian’s recommendation and reasoning. She approached the issue from a proper welfare perspective and was entitled to give very great weight to the child’s wishes and feelings.
3. The judge had not impermissibly confined her attention to one matter in the welfare checklist. The possible effect of changing the arrangement, the difficulty of settling into abridged contact, the impact on development, the importance of time with the father, and Friday evening activities were all within her mind and emerged implicitly from her conclusion. The judge had heard substantial submissions and reached a clear conclusion which she clearly expressed. There was therefore no legitimate basis for appellate criticism.

Order: appeal dismissed.

• Court of Appeal (Civil Division): On 3 May 2012, dismissed the father’s appeal. [2012] EWCA Civ 714
• Court of Appeal (permission stage): On 18 January, McFarlane LJ granted permission and directed that transcripts or counsel’s notes be obtained.
• Guildford County Court: Her Honour Judge Raeside decided the contact dispute on 9 September 2011.