T & Anor (Appeal: Fair Hearings: Delegation of Judicial Functions), Re
[2024] EWHC 2236 (Fam)
The Mother v The Father & Anor
5 February 2024
[2024] EWHC 272 (Fam)
High Court
A judge made a decision about how much time a child should spend with their dad, even though everyone else agreed it should be up to the child. A higher court said the judge didn't follow the right rules, overturned the decision, and said they should use mediation and let the child decide.
Key Facts
- •Appeal against an order made by HHJ Williscroft on 21 June 2023 concerning contact arrangements for an 11-year-old child, F.
- •The order concerned the rate of progression of contact between F and her father.
- •All parties (including the children's guardian) agreed that contact should progress at F's pace.
- •HHJ Williscroft made an order despite the unanimous agreement for a flexible arrangement.
- •The judge did not inform the parties of her intention to make an order before doing so.
- •F's wishes and feelings were documented in the children's guardian's report and a letter from F herself.
Legal Principles
Procedural fairness requires that parties be given the opportunity to make submissions before an order is made.
Implicit in the rules of court and principles of natural justice
A judge should consider and address the recommendations of the children's guardian in their judgment.
Implicit in the judge's duty to consider the best interests of the child
Outcomes
Appeal allowed.
The judge's failure to inform the parties of her intention to make an order and to allow submissions before doing so constituted a serious procedural irregularity and injustice. The judge's failure to adequately address the children's guardian's report was also considered an error.
Recital 7 of the order was set aside.
The substance of paragraph 2(d)-(g) was to be included in a recital, not an order, to provide flexibility and avoid the risk of enforcement proceedings if contact became contrary to F's wishes.
The case was not remitted for a rehearing.
All parties agreed that mediation, child-led progression, and flexibility were preferable to a rehearing. Contact was progressing well according to the June 2023 agreement.