The Court of Appeal has ordered that a mother be given access to transcripts of a High Court judge’s meetings with her three children, ruling that she needed the material to prepare an effective appeal against the refusal of her relocation application.
The appeal concerned access to the transcripts, not the relocation decision itself. The Court of Appeal announced on 6 December 2021 that it was allowing the mother’s appeal and directed that the transcripts be given to the solicitors for both parents. They may be used only in the judicial separation proceedings, including the mother’s appeal against the refusal of relocation. The court gave its reasons in a judgment delivered on 9 March 2022.
The parents, identified in the judgment as D.K. and P.I.K., have three children. The High Court judge met each child separately on 8 July 2021, after a five-day hearing and before delivering judgment. The meetings took place in the courtroom with a registrar present; neither parent nor their legal representatives attended. The meetings were recorded, and a transcript was placed in a sealed envelope on the court file.
The High Court later refused the mother’s application to relocate the children to D. In its judgment, it referred to what the children had said in their meetings with the judge. The Court of Appeal noted that both parents accepted the judge had relied on those conversations in reaching her decision.
The mother argued that without the transcript she could not properly prepare her appeal, because she and her lawyers could not review or address material relied on by the High Court. The father opposed disclosure, arguing that access was within the judge’s discretion and that the children’s privacy and welfare should be protected.
The Court of Appeal held that requiring the mother to pursue her appeal without seeing material relied on by the High Court would undermine her right to an effective appeal and the basic requirements of fair procedures. It said disclosure would allow the mother and her lawyers to assess what the children had said and make any relevant submissions. The court did not suggest the children should be cross-examined.
Having reviewed the transcript, the court found no basis to believe disclosure would harm the children or conflict with their best interests. It also noted that the parents had not agreed to confidential meetings and that the judge had made no promise to the children that their conversations would remain confidential.
The judgment expressly left open issues for the separate relocation appeal, including whether the High Court judge was entitled to meet the children or to rely on their views. The Court of Appeal proposed that the father pay the mother’s costs of this transcript appeal, subject to adjudication if the parties could not agree. The father had 14 days to seek a brief further hearing on costs; otherwise, the proposed order would be made.