E v D

I am dealing with an appeal from a decision made by District Judge X, sitting in the Y Family Court and set out in an order dated 28 August 2025. The order appears at B8 in the bundle. The case involves two children: A, born [redacted], and B, born [redacted], born [redacted]. They appear through the Children’s Guardian, C, who gives instructions today to Ms Koucheksarai. The mother in this case is D. She appears today as a litigant in person. The father is E, and he is represented today by Mr McCormick.

The matter has a very unhappy and lengthy history. It is worthy of note at the outset that this is case number LV22P00114. That means that these parties have now been embroiled in litigation for over three years. That is far too long. That does no good for the parents and their emotional well-being, and it certainly does no good for the children to be embroiled in litigation for such a period of time. It is worthy of note that three years represents one-sixth of their entire childhood.

The order that is the subject of appeal by the Children’s Guardian has the following key passages:

“(1)

Child arrangements order, interim.

On or before 5 September 2025, there shall be a preparatory meeting between B and the Guardian. The Guardian shall explain to B that the Court has considered all of the information, including his wishes and feelings and decided that he should re-engage in direct contact with the father, and that such contact shall commence as ordered below.

(2)

There shall be direct contact facilitated and supported by the mother and Guardian between the father and B between now and the next hearing as follows:

a)

8 September 2025 at Cafcass offices, Liverpool Civil and Family Court, 35 Vernon Street, Liverpool, L2 2BX, supported by the Guardian, 4pm to 5pm.

b)

22 September 2025 at Cafcass offices, Liverpool Civil and Family Court, 35 Vernon Street, Liverpool, L2 2BX, supported the Guardian, 4pm to 5pm.

c)

For any alternative additional times agreed between the parties.

(3)

For the avoidance of doubt, the mother shall make arrangements for B to attend the above contact, i.e. by dropping him off at Cafcass offices or inside any other agreed venue or arranging for him to be dropped off”.

There was then a penal notice attached by paragraph five, and that penal notice attached to all three of those paragraphs. A review hearing was listed before District Judge X, who has been the district judge dealing with most of the hearings over the three and a half years or so that these proceedings have been ongoing The review hearing was listed 24 September, and the attendance of the parties and the Guardian was required.

That order was made following an application by the father because there was a concern by the father about contact not taking place in accordance with a previous order made by District Judge X on 19 May 2025. The key paragraphs in that order were:

“(1)

On 24 June 2025, there shall be a preparatory meeting between B and the Guardian. The Guardian shall explain to B that the Court has considered all of the information, including his wishes and feelings, and decided that he should re-engage in direct contact with the father, and that such contact shall commence as ordered below.

(2)

The mother shall facilitate the father having direct contact with B between now and the next hearing as follows:

a)

25 June 2025, community contact, supported by the Guardian, from 4pm to 5pm.

b)

2 July 2025, community contact, supported by the Guardian from 4pm to 5pm”.

The matter then came before District Judge X for hearing, and pursuant to my direction at the previous directions hearing, the Court now has the benefit of a transcript. The transcript reveals that, as was indicated by Mr McCormick, this was a hearing that took place over five and a half hours or so in the sense that it began at 10.17am. There was an initial exchange. The Children’s Guardian was not present, and the matter was put back until 2.30pm. The Children’s Guardian was engaged in another case in proceedings in court in Liverpool, and so she was then subsequently joined by telephone.

The transcript of the proceedings is before me, and it runs to some 26 pages. I indicated at the outset to Ms Koucheksari that I had a number of concerns arising out of the transcript, and I will deal with those shortly.

The position of the parties today in respect of the appeal from District Judge X is as follows: the Children’s Guardian obviously brings the appeal and pursues it. The mother supports it. The father neither opposes nor supports the appeal.

The position from the transcript in terms of what happened after the initial order in May is that it appears that, initially, there was a meeting at school. The Children’s Guardian attended. There were two other professionals present, and it was reported that the child had become distressed when there was a discussion about contact with the father. I wish to make it abundantly clear at this stage that nothing I say should be taken to express any merits about the substantive application. That is not my role today. My role and my focus are simply on the appeal itself.

The Children’s Guardian, having seen the level of distress, had reported that she was no longer comfortable with the position that had been reached at the May hearing. She had begun that hearing with the professional judgment that there should be no direct contact, but it seems that during her evidence and questioning from both the Court and Mr McCormick on behalf of the father, the Children’s Guardian had changed her position, largely based on the balancing exercise between short-term emotional harm and long-term gain, and on balance in light of the risk analysis opposed contact, to supporting the recommencement of contact with the father. It is fair to say that her involvement in recommencing contact as set out in the May order was reflective of a consensual position on her part, and this was not something that was, as it were, imposed upon the Children’s Guardian by the Court.

The May order that was made by District Judge X, could be said to impose an obligation on the Children’s Guardian in terms of the preparatory meeting, but in terms of the actual taking place of direct contact, the obligation was placed very firmly on the mother in that order.

The Children’s Guardian then, having noted that the preparatory meeting had not gone well, had changed her position and felt that the approach to direct contact should be changed, and she gave the professional opinion and direction to the parents that it would be better to have a chance meeting, albeit it was a staged meeting in a McDonald’s restaurant, where the child could form the perception that this was something that had happened purely by chance rather than design. It was reported by the Children’s Guardian that that had not gone well either.

It is also fair to say that both Mr McCormick and the Court were very critical of the Guardian’s decision that the arrangements for contact as set out in the May order could and should be changed to provide for the staged chance meeting. Also, District Judge X was critical that the Children’s Guardian had not made a formal application to vary his order and, rather, had given advice to the parties to proceed in the chance meeting way.

Accordingly, the application was made by the father. The case was restored before District Judge X before the planned review hearing, and that hearing took place in August.

The transcript, in my judgment, raises the following concerns: first of all, it is clear from the transcript that the mother was making an application to adjourn in the face of the Court and began to make that application by saying that she had not had time to source a barrister, and the father’s application has been premature and incorrect.

She then began to continue with the representations that she wanted to make, but she was cut off after she then said “he has not”, by the judge who said, “Well, has there been contact or has there not?”. The mother replied, “There has been, Sir, there has been on the 7^th…”, and she was cut off again by the judge, who said, “Okay, I am not going to agree to an adjournment”. That, in my judgment, failed to observe the mother’s Article 6 rights to a fair hearing. In my judgment, the judge ought to have been sensitive to the fact that the mother was not legally represented, whereas the father and the Children’s Guardian were legally represented.

Mr McCormick has observed that District Judge X’s hearings do proceed in, if I may use my own phrase, a “rather robust fashion”, where the judge is not slow to express his views. However, that being said, whilst sometimes cases require robust case management, that must not be at the cost of fairness, and there is a complete lack of fairness to the mother in the way that that application was dealt with. He should have given the mother a fair and proportionate opportunity to set out why she was seeking an adjournment.

Unfortunately, there is also, in my judgment, clear evidence that the Children’s Guardian was not given a proper and fair hearing and, in particular, when Mr McCormick on behalf of the father had raised the possibility of the Court imposing a penal notice on the direction for the resumption of contact and how that was to take place.

At D9, where District Judge X said,

Then, Ms Wingfield (who was instructed by the children’s guardian) was asked for her observations, and she replied,

“Well, I’ve not taken instructions from the Guardian on the suggestion of a penal notice, but I’m willing to do that”.

I pause to note at this stage that the application for a penal notice was being made in the face of the Court, and the first time that it had been raised was literally in the moments before she was asked to speak in the exchange before District Judge X and Mr McCormick on D9.

In response to Ms Wingfield’s suggestion that she take instructions from the Guardian, who was not present at this point in the hearing, which is why the matter was put back, (I think until 2.30pm; I think the Guardian was still absent at that point), District Judge X said this:

“Well, I am not interested with all possible respect, in the Guardian’s views about the imposition of a penal notice. I am more interested in Mr McCormick saying we need a re-set”.

That, with respect to District Judge X, is difficult to understand. He was being asked by Mr McCormick to impose a penal notice on a Children’s Guardian. That, in my experience, is a wholly exceptional course. In fact, I have never seen it done before, and I have been sitting now for over 25 years; a wholly exceptional course. Of course, not only was this penal notice on an independent professional, but this was the proposal for a penal notice on a Children’s Guardian; somebody who is there as an independent expert and the role is designed for that expert to make recommendations to the Court about the appropriate courses to take that are in the best interests of the children that they represent.

It is, therefore, impossible to understand why District Judge X would be “not interested” in the Guardian’s views about the imposition of a penal notice. That drives a coach and horses through the Children’s Guardian’s Article 6 rights to a fair hearing and simply cannot withstand scrutiny. That demonstrates a judge whose mind is made up and not a judge with an open mind until all parties have had a fair opportunity to express their views.

It is unfortunate that he did not demonstrate more interest in the Guardian’s views about the imposition of a penal notice because the decision to impose a penal notice on the Children’s Guardian, in my judgment, is procedurally flawed and wrong in any event.

First of all, the original order in May, in terms of facilitating direct contact, (and I distinguish that from having a preparatory meeting), was not a mandatory order placed on the Children’s Guardian in any event. The direction to facilitate contact was a direction made against the mother and not the Children’s Guardian.

Accordingly, when the matter came before District Judge X in August, not only did the learned district judge change the nature of the order then in the August order to impose a positive obligation on the Children’s Guardian to facilitate contact in Vernon Street, he then imposed a penal notice. Accordingly, in other words, he moved to a penal notice and an amended order before even being satisfied that the Children’s Guardian had breached a mandatory court order against her to support contact.

It is also the case that, in any event, the Children’s Guardian’s approach was not to say, “There shall be no contact”; she simply changed the method by which direct contact would be achieved. In my judgment, the jump from an order where there was no compulsion on the Children’s Guardian with regard to supporting direct contact in the May order to an order that compelled the Children’s Guardian in the August order, was wrong and could not be justified in any event on the factual history of what had happened between the May order and the August order.

However, in my judgment, it goes much further and much deeper than that, because, in my judgment, the Court simply had no jurisdiction to compel a Children’s Guardian, “to facilitate and support contact between a child and a parent”. In my judgment, the jurisdiction simply does not exist in the Children Act 1989 for the Court to make that order. In those circumstances, the Court does not have the jurisdiction to impose a penal notice on such an order.

Reference has been made to the role of a Children’s Guardian appointed under Rule 16.4 in the Family Procedure Rules, Practice Direction 16A and paragraph 7.6:

“It is the duty of the Children’s Guardian fairly and competently to conduct proceedings on behalf of the child. The Children’s Guardian must have no interest in the proceedings adverse to that of the child, and all steps and decisions the Children’s Guardian takes in the proceedings must be taken for the benefit of the child”.

In seeking to compel a Children’s Guardian to facilitate and support contact between a father and, in this case, children, in my judgment, runs contrary to the role of a Children’s Guardian in these proceedings. The role of a Children’s Guardian is not there as a contact facilitator, and they cannot be compelled to do so in my judgment. It is right, as Mr McCormick says, that there are cases where a Children’s Guardian offers their services on the basis that they may, for example, have a particularly good relationship with a child or children for whom they are acting where they will offer to observe or to support a contact session for the purpose of assessment which has a dual purpose, in that it may sometimes be successful in kickstarting contact.

That is not a practice that I am seeking through this judgment to disapprove of, and, as a professional working with children, it is very often extremely useful to the Court that Children’s Guardians, as they so often do, are willing to go above and beyond in the interests of the children that they are appointed to represent. However, that is a very different thing from the Court taking upon itself to redefine the role of a Children’s Guardian in Children Act proceedings and that was a step that, in my judgment, District Judge X did not have open to him, either in the sense of supporting or facilitating and supporting the resumption of contact between the father and B, or, indeed, for that matter, to compel a Children’s Guardian to hold a preparatory meeting for the purpose of contact.

How Children’s Guardians carry out their assessments for the purposes of preparation of analysis, either initial or final, for the purposes of reporting to the Court is a matter for them. It is not for the Court to start dictating to Children’s Guardians how they carry out their professional responsibilities, other than to identify the issues to be addressed in an analysis. It was, in my judgment, several steps too far for the Court to make the orders that it did. In those circumstances, the imposition of a penal notice on the Children’s Guardian, in this case, simply does not withstand scrutiny.

In my judgment, the decision that District Judge X was wrong for the reasons that I have set out, and in addition to that, the decision was also unjust because of serious procedural irregularities in the way that the hearing was conducted and, in particular, the apparent conclusion reached by District Judge X in respect of the imposition of a penal notice and his expression that he was not interested in the Children’s Guardian’s views about the imposition of a penal notice.

In those circumstances, the order of District Judge X is set aside, and the Court has now to consider what should happen to the future conduct of this case. I have already expressed considerable disquiet at the length that these proceedings have been running for. I am also troubled, as I have said, at the way that the judge, during the hearing, essentially cut off the mother when she was making an application to adjourn and also in the way that the judge was unwilling, on occasions, to allow the representatives to complete their submissions.

I have decided that a combination of those features and the fact that District Judge X has, in my judgment, irretrievably soured the relationship between the Court and the Children’s Guardian, that notwithstanding the lengthy history of these proceedings and the judicial continuity that District Judge X has provided, the Court has no alternative but to reallocate this matter, and I intend to reallocate the matter to the senior district judge in Cheshire and Merseyside, District Judge O’Neill, sitting at Vernon Street in Liverpool.

This matter cries out for a final hearing. That is the view of the father, the view of the mother and the view of the Children’s Guardian, and it is a view with which I wholeheartedly agree. I also agree with the suggestion made by Ms Koucheksarai and Mr McCormick that it may not be appropriate for this matter simply to be listed for a final hearing. I am not minded, however, to list for another directions hearing, and I completely understand the father’s wish that the Court should strive to keep the number of hearings as low as possible.

In those circumstances, I intend to invite District Judge O’Neill to consider the papers in this case, voluminous though they may be, and to consider them on paper without a hearing. If, and only if he feels that it is necessary for the Court to hold a directions hearing, will there be one. Otherwise, I will leave it to him to give the listing directions. I do, however, agree with the suggestion made that there should be an updating analysis from the Children’s Guardian, setting out her professional recommendation to the Court, and I will hear submissions on how long should be allowed for that in a moment. Then, of course, the mother and the father must have an opportunity to respond to it with their own updating position statement.

The matter will be reallocated to District Judge O’Neill. Accordingly, the order will be appeal allowed. The Court reallocates the matter to District Judge O’Neill.