E,F and G (Interim Child Arrangements), Re
[2024] EWCA Civ 874
T & Anor (Appeal: Fair Hearings: Delegation of Judicial Functions), Re
29 August 2024
[2024] EWHC 2236 (Fam)
High Court
A dad with a history of abusing his wife wanted more time with his kids. A judge quickly allowed it, relying on a social worker's opinion without a full hearing. The higher court said this was wrong because the judge didn't properly consider the risks and gave too much power to the social worker. They sent the case back to a different judge to make a fairer decision, and ordered that the children get their own lawyer.
Key Facts
- •Protracted private law proceedings concerning two children following the parents' separation in August 2020.
- •Extensive history of litigation, including findings of fact by Mr Recorder Roche KC of serious emotional, psychological, and physical abuse by the Respondent against the Appellant.
- •A s.91(14) barring order was made by HHJ Davies in June 2023, restricting the Respondent's ability to make applications to vary contact orders.
- •The Respondent made multiple applications to vary contact orders, often without notice to the Appellant.
- •HHJ Davies granted the Respondent permission to apply for unsupervised contact in a short, without-notice hearing via CVP link.
- •HHJ Davies subsequently ordered an s.7 report from an independent social worker to assess unsupervised contact, effectively delegating the decision to the social worker.
Legal Principles
Test for permission to appeal under s.91(14): Need for renewed judicial investigation based on an arguable case.
Re S - CA 1989, S91 (14)) [2023] EWHC 1161 (Fam)
Overriding objective applies to case management decisions, but significant substantive steps require application of s.1 Children Act 1989 and Practice Direction 12J.
FPR rule 30.12(3), Children Act 1989, Practice Direction 12J
Court must ensure any contact order does not expose the child to unmanageable risk of harm and is in the child's best interests (PD 12J, para 35).
Practice Direction 12J, para 35
Judges should not delegate their judicial function.
Case law implied through the judgement
Appellate court should not substitute its own judgment for that of the trial judge, but deference must be given.
Piglowska v Piglowski [1999] UKHL 27
Costs in appeals are determined by applying principles in Re O (Appeal: Costs) [2024] EWHC 1163 (Fam)
Re O (Appeal: Costs) [2024] EWHC 1163 (Fam)
Outcomes
Appeal allowed.
HHJ Davies made serious procedural errors by failing to allow a substantive challenge to evidence, failing to apply PD 12J properly, wrongly delegating her judicial function to the independent social worker, and the social worker lacking necessary information to make an informed decision.
Order of HHJ Davies dated 22 May 2024 set aside.
The order was unfair and procedurally flawed.
Respondent's application for unsupervised contact remitted to the lower court before a different judge.
To ensure a fair hearing.
Children joined as parties to the proceedings.
In their best interests due to the high conflict nature of the case.
Rule 16.4 Guardian appointed to represent the children.
To provide independent representation for the children.
No order for costs.
In accordance with Re O (Appeal: Costs) [2024] EWHC 1163 (Fam).