England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
(His Honour Judge Hamilton)

		Royal Courts of Justice Strand London WC2 Thursday, 21st June 2001

1. LORD JUSTICE THORPE: I am grateful to Mr. Strongman who has distilled an excessively long skeleton argument on behalf of the applicant, K B-M, into a single point of substance, namely that Judge Donald Hamilton, sitting in the Birmingham County Court, was plainly wrong to have proceeded to a final hearing when all the parties sought adjournment; alternatively, having embarked on the final hearing he should have acceded to a submission by this applicant's counsel that no decision should be taken against K B-M as potential parent without the completion of professional assessments.
2. This is an unusual story, and I take it from the reserved judgment of Judge Hamilton dated 8th March 2001. He had to decide the way forward for three children, A who is 5 and two twins, S and I, who are both 3. Those children are the children of TH and only A is the child of Mr. K B-M. The three children were in the care of their mother as a single parent on 19th October 1999 when they were taken into care under a police protection order. The local authority applied for care orders on the following day, and the proceedings continued in the magistrates' court until 4th August 2000 when they were transferred to the county court. During that interim there was some question as to whether K B-M was a potential carer for A alone (he never advanced himself as a potential carer for the twins) or whether his mother, Mrs D-H, was another alternative.
3. After the transfer to the county court a district judge laid down a timetable towards final hearing on 28th February. During the course of the ensuing months the local authority took a view of K B-M, and certainly by the end of the year they were quite favourably inclined to his case to provide future parenting for A. The district judge had permitted an expert to be instructed at the suggestion of the father's solicitor. But, unfortunately, the letter of instruction was sent without consultation of the other parties. It was sent very late and it enclosed a selection of material which had not been agreed with the other parties. Equally, the local authority's intention to obtain an opinion from a consultant child and adolescent psychiatrist had run into considerable delay, for reasons which it is unnecessary to record.
4. In those circumstances, the parties applied to Judge Hamilton far too close to the fixture for an adjournment. The application was not issued until 16th January. Those issuing it did not draw to the attention of the court that it was urgent, and accordingly it was not listed until 8th February, within three weeks of the fixture. The judge refused that application robustly, no doubt to the surprise and consternation of the parties. But no specific application for permission was issued in relation to his decision on that day. The judge took the view that the additional professional material that the parties sought time to adduce was unlikely to be of much value and that he was in as good a position as any expert to tackle the root question whether it would be better for A to preserve her daily life with her sisters or to commence a daily life with her father.
5. The parties then set to work to meet a tight timetable laid down by the judge on 8th February, in time for a pre-trial review on the 21st. They did not meet the timetable and the application for an adjournment was renewed on the 21st. The judge again refused the application. No application for permission was issued in respect of the decision given on that day. The case came for trial on 28th February. Its most unusual feature is that K B-M, who sought the trust of the court for the discharge of the heavy responsibility of providing a future home for his daughter, declined to give evidence. He was represented by counsel, Mr. Mahmood, who advanced two reasons for his client's decision not to testify. As the judge pointed out in his judgment, those two reasons were plainly contradictory on their face. Both related to the extent to which he had been assessed psychologically. The need for Mr. B-M to give evidence from the witness-box rested not only on the scale of the responsibility he sought but also on the huge question marks that arose out of the history. The judge recorded that his adult life could properly be described as rootless. The judge recorded that he had been aggressive and supercilious in his dealings with the local authority and that he did not observe rules because he regarded himself to be above rules when it suited him. Another witness described him as a conman which the judge thought on the papers was probably right. So the decision to abstain from entering the witness-box was, if not fatal to his prospects, plainly injurious. In the end, the judge reasoned his final conclusion thus. He accepted that the psychological assessment of Mr B-M was incomplete. He analysed the material that was available as falling far short of an endorsement of Mr. B-M's capabilities. But he said, assume that the completion of the work would remove all those doubts and demonstrate him to be well capable of providing good enough parenting for his daughter, would that affect judgment of the outcome? To that question the judge answered no, because he was clearly of the opinion that the greater value to A was the continuation of her relationship as the oldest of her mother's three children. On that basis he reached the confident conclusion that the local authority's application for care orders could be granted in respect of all three.
6. It is that judgment, signed on 8th March, prepared a few days earlier, and reasoning orders made on 2nd March that Mr. Strongman seeks permission to appeal. It seems that Mr. B-M had been ill-served by his previous solicitors who the judge criticised for their conduct of the proceedings in his court, and certainly this court would criticize the manner in which they sought to present the application for permission. Accordingly, the application has taken longer to reach decision than would otherwise have been the case. But leaving that aside, for it is in truth only peripheral, the application in the end comes down to this. Was the judge's conduct of the interlocutory proceedings, followed by his conduct of the trial, so obviously flawed as to open prospects of success at a level that could be described as realistic. I can imagine that many judges would not have taken the line taken by Judge Hamilton. It was a strong and confident line. That was obviously vulnerable to criticism but Judge Hamilton is a judge of great experience, and there are instances in which the welfare of children depends on strong judges taking firm lines, even if in so doing they risk disconcerting and may be even antagonising the local authority who provide most of the public law in that court of trial. I am clear in my mind that the judge fully vindicates himself against criticism by the terms of his reasoned judgment. I am in no doubt at all that he was not only entitled to take the course which he did but he was wise to do so in pursuit of the welfare of these children. I do not consider that there is merit in this application but in dismissing it I would wish to return to the point at which I began, and to commend and thank Mr. Strongman for the way in which he has presented it.
Order: Application refused.