H (Children)

In family proceedings, a judge’s meeting with a child is for hearing anything the child wishes to say and explaining the process, not for gathering evidence. Judicial continuity permits a judge to develop a preliminary view as evidence unfolds across successive hearings and to use it in proportionate case management, while remaining responsible for evaluating the whole evidence. An immediate change of residence during continuing proceedings, pending further assessment, is lawful only where evidence establishes that the intervention is proportionate to safeguarding welfare. Findings made at the hearing may materially alter the risk of emotional harm and justify an interim change of residence or supervised contact.

Private law proceedings concerned three boys living with their mother after the parents’ separation. The father sought contact and later residence orders. Following extensive allegations and a fact-finding process, Mrs Justice Parker made an order on 23 December 2013 transferring A’s residence to his paternal grandmother and B and C’s residence to their father, with supervised contact for the mother. A local authority report under Children Act 1989, s 37 had recommended no contact for the time being. The mother challenged the fairness of the process, the judge’s meetings with the children, the absence of expert evidence and the immediate change of residence. The Court of Appeal considered whether permission to appeal should be granted.

Lord Justice McFarlane gave the judgment, with Lord Justice Davis and Lord Justice Tomlinson agreeing.

1. Judicial meetings with children. A judge may meet a child to provide an opportunity for the child to speak and to explain the court process. Such a meeting is not an evidence-gathering exercise. The meetings in this case were recorded, attended by the relevant court personnel and conducted consistently with the applicable guidance. The judge was entitled to explain that a change of residence might be ordered and to address the children’s understanding of the proceedings.
2. Judicial continuity and case management. Where the same judge hears successive stages of family proceedings, those hearings should generally be regarded as one continuing process. It is artificial to require the judge to disregard views formed from earlier evidence. The judge was entitled to develop a preliminary view of the mother’s credibility and to use it in managing the December hearing, while considering the newly disclosed police material. The mistaken understanding about the timing of one child’s allegations was only one factor in the judge’s reasoning, and the conclusion remained open on the evidence.
3. Expert evidence. The challenge concerning expert instruction fell away because a subsequent multidisciplinary assessment had been arranged. The judge had not improperly exceeded the judicial role by considering whether the children were emotionally safe after making adverse factual findings. The court, rather than an expert, remained responsible for findings and decisions, while further assessment could inform the continuing proceedings.
4. Immediate change of residence. An immediate change of primary residence during ongoing proceedings, where further assessment is pending, must be supported by evidence establishing that the intervention is proportionate to safeguarding welfare on an interim basis. The factual findings were a dynamic event which could materially alter the risk of emotional harm if the children remained with the mother. The judge was entitled to disagree with the social worker and Children’s Guardian and to conclude that residence with the father, together with supervised maternal contact, was required. The order could not be characterised as wrong or disproportionate.

Permission to appeal was refused.

1. Court of Appeal (Civil Division): on 14 April 2014, the court refused permission to appeal; its reserved reasons were delivered on 5 June 2014 in [2014] EWCA Civ 733.
2. High Court, Family Division: Mrs Justice Parker made the order of 23 December 2013 transferring the children’s residence and regulating the mother’s contact.