‘Change of residence’ in the context of a child arrangements order (a reform that was supposed to get rid of the ‘win-lose’ concept of residence and contact before 2014) is quite a cold, technical term to describe a child having to move from one household to another.
Under the Children Act 1989, the weight given to a child’s own wishes and feelings about where they are going to live turns on their level of understanding. How does the court ‘ascertain’ these?
A judgment published on BAILII, SC v TC  EWHC 1637 considers these issues relating to a 14 year old boy, who had been subject to litigation between his parents for the past eight years, since he was just six years old. It’s a very unusual case because, not only was the 14- year-old not being consulted, the organisation representing him (NYAS) had been communicating directly with the judge about the case, without the other parties (i.e. the parents) being aware. On appeal by the mother to the High Court, Mr Justice Newton said:
I am extremely anxious about what appears to have occurred. As a matter of justice, everything must be conducted openly. No doubt, sometimes it is necessary for communications to occur of a routine nature, but it is necessary that everyone should know about it. With any other question, if there is an issue – and in this case, there are any number – then the matter has to come back to court, and be conducted in court, no one can be accused of conducting business behind closed doors, without the other party knowing it. There is a real issue here, because in this case the Judge had been in communication with NYAS for several months. It is unclear to what extent that might have affected her mind and the decision making process, let alone the decisions themselves.[para 26]
It should be pointed out here that by the date of the appeal hearing, the boy, having been returned to his father some four months earlier, now seemed to wish to remain there.
In complex private law proceedings such as these, the recommended way to proceed is by making the child himself a party in the case and appointing a Cafcass guardian under Family Procedure Rule 16.4 so that a lawyer can be instructed to put the child’s case to the court. Sometimes the guardian and the lawyer are appointed from an external organisation, NYAS (National Youth Advocacy Service). In this case, Newton J tells us that, in May 2018, ‘As CAFCASS were unable to assign the case in a reasonable time, the dispute was therefore allocated to NYAS.‘
What then happened was that in the Family Court, in a hearing that took place in the early evening in November 2018, the judge ordered a change of residence from B’s home with his mother to that of his father. Contact with his mother then ceased, but she applied for, and was granted, leave to appeal. In February 2019, NYAS was discharged from the case.
In the High Court (on appeal), the barrister for the mother argued:
- In the Family Court, the judge had no information on B’s views and had not sought these. (In hindsight, B supported the move, but that view was not put before the judge at the time of her decision.)
- The judge and the NYAS lawyer had been communicating privately through email and phone calls about the best way to manage a change of residence for B. The mother’s barrister said: ‘ It is contended on behalf of the mother that the Judge behaved in a way which was unfair, lacked transparency and was procedurally irregular‘.
In his analysis, Newton J makes several references to the need for transparency. He is referring here to a situation where he fears that the original judge had come to a decision about where B should live before all the evidence had been submitted, and had then discussed with the child’s solicitor how this could be implemented – but that discussion was not shared with either parent or the child. It is of course, a fundamental principle of a fair trial that all parties are informed of all the evidence that is presented to the judge. Newton J allowed the appeal because of these procedural irregularities.
It is perplexing to read a judgment where a 14-year-old was not given an opportunity to demonstrate the level of his understanding and to have his views conveyed to the judge. His rights – and those of his parents – appear to have been overriden by concerns about his welfare. However, there are factors pointing to an explanation.
Newton J notes that the judge had to squeeze the hearing into a very crowded list and limit the amount of evidence given by each party that evening. Neither of the parents were represented by lawyers. There was a history of very troubled relationships amongst the family members, and references by Newton J to the mother’s ‘extreme’ behaviour. It therefore appears that, in this very delicate situation, where only one lawyer was involved, and the parties’ responses were unpredictable, or even volatile, the focus became the logistics of the child moving from his mother’s care to his father’s, and serious breaches occurred despite everyone’s best intentions. Neither the judge nor the solicitor spotted the procedural errors that resulted in the decison being overturned.
Newton J is on record as being in favour of publishing judgments. This is an important case, as an example of things going off the rails, at least in part because of lack of resources in the system.
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