H (A Child), Re

This is an appeal from the decision of Her Honour Judge Raeside of 9 September 2011 in the Guildford County Court on a relatively minor dispute between the parents of a seven-year-old boy William. The case had apparently been labelled “half-hour appointment” in error, when in fact a day had been allowed for the judge to decide on outstanding issues. The case had a considerable litigation history and a number of judges had at various points since 2008 made orders, including Judge Rylance whose last order was the foundation and from which variation was either being sought or was being discussed between the parents and their litigation team. Fortunately for William, he had the advantage of guardianship through NYAS representation, so before court on that day there were three counsel, one for each of the parents and one for William.

We have a clear picture of what happened on 9 September, because the judge has recorded her recollection in a statement of 24 April and that recollection is accepted by the three members of the Bar who appeared before her. How did that note come to be prepared? Well, there were two issues ultimately decided by the judge. One was as to the Christmas arrangements, which she decided against the mother. The other was in relation to the duration of alternate weekend contact, which she decided against the father. Accordingly, an application for permission was filed in this court on 30 September, supported by grounds and skeleton argument written by the father as a litigant in person. From there he proceeded to an oral hearing before a single Lord Justice, McFarlane LJ, on 18 January. Having heard the father, assisted by his brother who is a solicitor with much experience in family law, the judge granted permission and he made a direction that a transcript of the hearing before Judge Rylance was to be obtained at public expense and served on the parties; and that:

It transpired that, as a result of error, the recording was not switched on during the meeting between the Bar and the judge. Accordingly, the three counsel prepared a note, which they submitted to the judge. The judge's record emerges from her comment on the agreed note, and we are told this morning that all three counsel are content with the judge's record. So the record reads thus:

The submission advanced to McFarlane LJ, not emerging in the grounds or the skeleton written by Mr Harding, was that the discussion between the Bar and the judge was impermissible and a breach of Mr Harding's Article 6 rights. In support of that submission McFarlane LJ was referred to the case of re Z [2009] 2 FLR 877. As the issue was presented to McFarlane LJ, I well understand why he granted permission, feeling that the procedure in the court on 9 September needed further investigation to determine whether or not there had been some breach of the rules of natural justice. Now we have the reality revealed to us by compliance with the second paragraph of the direction, I am completely satisfied that all that the judge did on 9 September was not only permissible but sensible and consistent with the general approach of judges in the trial courts to case management where the parties are engaged in lengthy negotiations which threaten to prevent the completion of a contested issue in the time permitted.

The case before us today has been extremely skilfully and attractively argued by Ms Davies, who overcame criticisms of the delay in compliance with the directions of McFarlane LJ with considerable charm and self-possession, and it is thanks to her unruffled aid in supplying the missing materials that we have been able to see relatively quickly what we would have seen clearly had the documents been provided to us in time for earlier preparation. So for that I express my personal gratitude and focus on the other point which is urged by Ms Davies, that the judge has impermissibly focused on only one aspect of the check list which is there to aid the judge in arriving at a balanced and complete welfare decision.

What was the issue? The issue was quite simple. Should the well established pattern of alternate weekend contact from after school on Friday to commencement of school on Monday persist or should there be a diminution so that contact commenced on Saturday morning? The judge had the advantage of a clear report from the NYAS guardian and it quite rightly played a large part in the judge's determination. It appears in this extract from the report of the guardian:

This, of course, is a clear representation of William's wishes and feelings. But that was not the only basis upon which the guardian made his recommendation, for we see in a following paragraph the guardian writing:

Ms Davies has said that she should also have considered the effect of change, the difficulty of settling into contact if it were abridged and the impact on his development given that time with his father was important, as were the Friday evening activities. I am in no doubt at all that all those factors were within the judge's mind and implicitly emerge from her conclusion. So, despite the able presentation, I would not find any legitimate basis for criticising the judge below, who plainly heard submissions from all three counsel at some length, as is demonstrated by 18 pages of transcript. She arrived at a clear conclusion, which she clearly expressed.

For those reasons, I would dismiss this appeal.

I entirely agree with what my Lord has said about both grounds of appeal, which I too would dismiss.