C (A Child)

Factual and Procedural Background

The case concerns an application by the Plaintiff for permission to appeal against an order made by HHJ Hughes QC in the Watford County Court on 3 October 2005 regarding contact with his two-year-old daughter, referred to as L. The Plaintiff sought an order for contact with L, who was living with the Defendant. The judge ordered supervised contact for a minimum of two hours weekly, with the supervisor empowered to increase the contact time and decide on its location after consulting both parents. A review was scheduled approximately six months later.

The Plaintiff, represented by Attorney Cameron, was discouraged from giving oral evidence at the substantive hearing, which led to complaints that he was denied a fair opportunity to contest the judge's firm view that he lacked sufficient parenting capacity for unsupervised contact. The Plaintiff and Defendant had a complex history involving mental health issues, allegations of domestic violence, and claims of inappropriate sexual behaviour by the Plaintiff towards L. These allegations were denied by the Plaintiff and had not been resolved at the time of the hearing.

Social services involvement included reports recommending supervised contact due to unresolved allegations and concerns about the Plaintiff's ability to cope with unsupervised contact. The initial social worker recommended supervised contact and parental responsibility be granted to the Plaintiff, while a subsequent report by a family support worker (not a qualified social worker) raised concerns about the Plaintiff’s practical ability to manage unsupervised contact, recommending continued supervision.

The substantive hearing was conducted under time pressure due to another case listed shortly after, leading to a curtailed examination of the issues. The Plaintiff ultimately did not give evidence, and the judge maintained the order for supervised contact with some flexibility on contact hours.

Legal Issues Presented

1. Whether the judge gave the Plaintiff a fair hearing when he was firmly precluded from giving oral evidence to contest the need for continued supervision of contact with his child.
2. Whether the judge lawfully exercised discretion in refusing to allow evidence or argument on the new issue of the Plaintiff’s practical parenting capacity raised late in the proceedings.
3. How the unresolved allegations of domestic violence and inappropriate sexual behaviour should have been treated in the contact proceedings.
4. The extent of procedural discretion available to family judges in conducting hearings involving children, particularly in balancing fairness with welfare considerations.

Arguments of the Parties

Appellant's Arguments

• The issue of the Plaintiff’s practical ability to care for the child unsupervised was raised very late and only by a family support worker without social work qualifications.
• The judge wrongly indicated she had no power to deviate from the recommendations of the family support worker, thus limiting judicial discretion.
• The Plaintiff, an intelligent and devoted father, had demonstrated exemplary care during supervised contact.
• It was arguable that supervision was no longer necessary and that the judge was required by principles of fairness and Article 6 of the European Convention on Human Rights to allow the Plaintiff to give evidence and have his counsel make submissions.

Respondent's Arguments

• The judge’s approach was supported by the precedent set in Re: B (Minors) (Contact) [1994] 2 FLR 1, which grants family judges broad discretion to conduct hearings as appropriate.
• The judge was entitled to decide the case without full oral evidence where sufficient evidence existed and where a full investigation might not serve the child’s welfare.
• The mother had effectively not pursued the allegations of violence and inappropriate behaviour in the contact proceedings, implicitly accepting the judge’s approach.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the procedural history, the evidence presented, and the conduct of the substantive hearing. It noted the late emergence of the issue concerning the Plaintiff's practical parenting ability, raised only by a family support worker without social work qualifications, and not by the mother or the initial social worker. The judge’s firm view that supervised contact should continue was expressed early and conclusively, discouraging the Plaintiff from giving oral evidence and limiting counsel’s submissions.

The court acknowledged the broad discretion family judges enjoy in managing hearings, especially balancing the welfare of the child with procedural fairness. However, it concluded that the judge exceeded this discretion by refusing to allow evidence or argument on a demonstrably arguable issue concerning the necessity of continued supervision. The court identified that the hearing was effectively final, with the Plaintiff having waited nine months, and that the judge’s procedural approach deprived him of a fair opportunity to contest the new issue.

The court also considered the unresolved allegations of violence and sexual misconduct. It found that the mother had effectively chosen not to pursue those allegations in the contact proceedings, and the judge was correct in excluding evidence on those matters. The court emphasized that the judge’s failure to afford a fair hearing on the practical parenting issue was likely influenced by the constrained hearing schedule and pressure to conclude the matter swiftly.

In summary, the court determined that fairness required the Plaintiff be allowed to present evidence and submissions on the new issue, which was not addressed in writing and was pivotal to the contact arrangements.

Holding and Implications

The court GRANTED permission to appeal and ALLOWED the appeal. It varied the judge’s order by declaring the contact order to be interim and directed that a substantive hearing take place on 23 February 2006 with an estimate of four hours. The court ordered that the hearing be conducted by a different circuit judge with family expertise and that no other cases be listed back-to-back to avoid undue pressure.

The direct effect is to afford the Plaintiff a fair opportunity to contest the issue of supervision of contact with his child, rectifying the procedural unfairness identified. No new precedent was set; rather, the decision reaffirmed existing principles concerning fairness and judicial discretion in family proceedings involving children.