In the matter of B (A Child)

Judgment

Sir James Munby, President of the Family Division :

This is an appeal in a case which would otherwise be unremarkable, except to the parties. However, it raises a point of no little public importance (though it has no impact on the substantive orders made by the judge), in relation to which my Lady, King LJ, gave directions when the matter came before her, on 13 September 2016, on the father’s application for permission to appeal: Re B (A Child) [2016] EWCA Civ 1088 .

The appeal is from an order made on 23 June 2016 by that careful and always meticulous judge, His Honour Judge Bellamy. He was sitting as a Circuit Judge in the Family Court at Leicester (of which at that time he was the Designated Family Judge; he is now the Designated Family Judge at Derby) hearing private law proceedings between the two parents of a girl born in May 2005. The father was unrepresented but had the assistance of a McKenzie friend, Mr Stuart Graham. The mother was also unrepresented but likewise had the assistance of a McKenzie friend. The child was represented by counsel, Ms Victoria Clifford, instructed by her NYAS guardian.

The point which is now before us arose because, as my Lady explained ( Re B , para 6):

“The father in support of his case that this was a case of deliberate alienation by the mother, sought to rely on various covert recordings made by him over the years. The judge took the opportunity of inviting a number of interested bodies to make written submissions in relation to the use of covert recordings of interviews and telephone conversations with practitioners. Such an invitation was neither necessary nor relevant to the decision to be made by the judge, and on his own account was intended “to stimulate discussion on the issue out of which perhaps some general guidance might emerge”. Mr Graham [he appeared before my Lady as the father’s McKenzie friend] points out that some 20 pages of what is a lengthy judgment was concerned with a consideration in the abstract of the use of covert recordings. Mr Graham submits that such an approach was unhelpful and inevitably gave the father the impression that the judge was not focused on his particular case.”

These covert recordings were, as the judge explained, of conversations the father had had with a social worker, a Cafcass officer and a solicitor.

The judge handed down his reserved judgment on 2 June 2016. It runs to 166 paragraphs. He made two orders. The first, also dated 2 June 2016, dealt w