Tuesday, 9 October 2007

Re R (A Child) [2007] EWCA Civ 943

Regular readers/insomniacs will recall I discussed Re W (A Child) [2007] EWCA Civ 102 indicating the dangers of judge’s being overawed by the constant advice to progress cases.

Another less common but related error is found in Re R (A Child). The principal error into which the judge fell in this case was to look at the case from the adult’s point of view. Having effectively forgotten the welfare principle, he nonetheless remembered the need to press on and make an order.

A father against whom findings of fact had been made of domestic violence and inappropriate physical chastisement to the child sought what the judge described as ‘modest’ contact of two half-hour sessions during the Summer holidays. But though from the father’s perspective the contact was modest and the court would in normal circumstances be almost bound to order it, from the daughter’s it was not. She was partially blind, had Asperger’s Syndrome and exhibited extreme behaviour at school, where she was not settled.

Moreover, CAFCASS had observed a contact session with the father and had reported that the effect on the child was such that it was not appropriate to continue. The CAFCASS and a doctor’s report both recommended that it would be prudent to allow the child to settle into school before trying again and CAFCASS went further to say that even then, contact should not take place without a positive school report. One was not available at the disposal and neither expert was cross-examined.

The Court of Appeal, overturning the judge’s order, found that at the child’s stage of development, the two half-hour sessions were ‘an enormous leap’ and the benefit of waiting as suggested by the experts outweighed any disbenefit to the relationship with her father. The Court of Appeal seems to have been reasonably polite given that the judge a) effectively ignored the welfare checklist &/or b) gave disproportionate weight to the need to conclude matters swiftly and c) gave no consideration to the fair trial rights of the mother who opposed the making of the order but had no opportunity to re-examine the experts who agreed with her, as they had not given evidence.