England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHICHESTER COUNTY COURT
(His Honour Judge Barratt QC)

		Royal Courts of Justice Strand London WC2 Thursday 28 June 2001

Thursday 28 June 2001

1. LORD JUSTICE THORPE: There has been litigation in the Chichester County Court over arrangements for J, born on 8 December 1996, the only child of parents who met at a time when they were both daycare officers at a centre for persons with learning difficulties in south London. The adult couple had a relationship that extended for nearly two years, during the course of which J was born. The dispute within the Chichester County Court was largely as to arrangements for the father and his mother to see J.
2. Those arrangements were the subject of a judgment delivered on 29 August 2000 by His Honour Judge Robin Barratt QC. The order provided that the grandmother should have supervised contact with J on two occasions. The court welfare officer was to supervise and to prepare a report by 1 November 2000 on that contact, providing her views on arrangements for future contact between J and his father and future contact between J and his grandmother. The judge said that the outstanding applications, namely the father's applications not only for contact but also for parental responsibility, should be adjourned to Thursday 14 December 2000 with a time estimate of one day, and any applications made by the mother in the interim were to be considered at the same time. He made provision for the filing of additional statements.
3. No doubt in response to that order, two days later the mother issued an application. Her application states on its face:

"I am applying to terminate and/or vary the Orders [previously made] which provide for direct contact . . . I am also applying for a residence order."

4. Her reasons for making that application were stated on the final two pages of her form. She stated that she remained firmly of the view that it was not in the best interests of J to have any direct contact with father or grandmother. She said that both were in her view unsuitable. She expressed her fear that J would not be properly cared for during contact. She referred to the hostility between herself and the paternal grandmother, which had not abated despite her best efforts. She could see no benefit in direct contact and submitted that, if there must be contact of some kind with either father or grandmother, it would best be indirect only. She concluded by saying that she was expecting a baby in March 2001 and was extremely concerned about the effect of these proceedings on her health and on the health of her unborn child.
5. That application obviously ran counter to the judge's conclusion that direct contact was in J's best interests, and it challenged his management of the family relationships. It also seems to me to indicate a degree of anxiety in the mother above the level that might be described as ordinary in a single mother who was having difficulty in dealing with the aftermath of a failed relationship from which a child had been born.
6. The next development in the case was a letter dated 2 November 2000 which came from the mother's solicitors. They wrote:

"We have instructions from our client that she will be moving to Scotland with her family at the end of this week. We have applied to the Legal Services Commission for further funding and as soon as we have that, our client will be filing an application for the leave of the Court to permanently remove [J] from the jurisdiction. We are hoping to file our client's application as a matter of urgency and if a hearing date cannot be fixed beforehand, then we would ask that the matter be heard on 14th December".

7. That letter reveals the first of a number of legal misapprehensions which have entered this case. All that the mother was seeking to do was to remove herself within the United Kingdom. There was no order in respect of the residence of J, there was no order for parental responsibility in relation to his father. In my opinion, as a matter of law it was open to her to make that move without the panoply of a full-blown application and what would undoubtedly have been a hotly contested hearing.
8. I say that because, on the day of receipt of that letter, namely 3 November, the father's solicitors wrote to the court saying that they had received notice of the mother's intention, and that this was a transparent endeavour to defeat arrangements for contact. They concluded their letter by saying:

"We would therefore ask that the Court invokes its power makes such an order as our clients consider that [J]'s welfare is likely to be affected by his removal from the jurisdiction."

9. That is not only bad English, but it seems completely to misunderstand the legal realities and the position of the court. Obviously if they wanted to invoke the court's powers, the proper way of doing so was to issue an application for such relief as they conceived that the statute gave to their clients.
10. The Chichester County Court responded very promptly, saying that Judge Barratt had directed the court to write to ask for the mother's response and to remind the mother that permission must be obtained from the court before the child might be removed from the jurisdiction. That letter, albeit sensible in its aims, only repeated the legal misapprehension that the mother required judicial permission.
11. The next stage was a letter written over a month later on 7 December from the court, in which the court communicated to both sides what was intended to be a direction from Judge Barratt. The direction was to this effect:

"Where a child has actually been removed from England & Wales to another part of the United Kingdom it is possible to register the residence order in that other part of the UK."

12. He referred to the Family Law Act 1986, section 27, and he continued:

"It appears . . . that since the mother, who had the benefit of the residence order has moved to another part of the United Kingdom, she is entitled to do so. . . However, she should apply to have her residence order registered in and transferred to Inverness . . . The grandmother and father can then pursue and enforce any variation of the order for contact in that court. Alternatively they can apply.

I will deal with this ex parte on the papers when I receive the application."

13. The judge had, of course, revised his view as to the restrictions on the mother's mobility, but he had fallen into the error of thinking that she had the benefit of a residence order.
14. His intention to deal with the fallout without notice on paper was fortified when the judge discovered that, as a result of error in the listing, 14 December, the day set aside for the hearing, was a date on which he had a long-standing commitment in London which he could not avoid. In those circumstances, he decided to deal with the case on paper, issuing a judgment and order on 12 December. The order as drawn says:

"1. The Review . . . listed for the 14th of December 2000 be vacated;

2. [J] shall reside with his mother . . ."

15. The order was in fact dated 13 December, but we know from the reasons that the matter seems to have been dealt with on the 12th, because that is the date appearing below the judge's signature on his written reasons.
16. In his written reasons, he explains how he came to make a residence order. He said, in paragraph 11:

"11. However it is doubtful that much progress would have been secured by the court on [14 December]. The mother has meanwhile moved to Scotland and apparently to Inverness. She had applied to this court for a residence order in September 2000.

12. I have today decided to grant her that order. There is no reasons to refuse it and it is not opposed. The mother is the primary carer and the child has always lived with her since the parents separated in April 1997."

17. He continued:

"13. All the relevant papers are in the court file and speak for themselves.

14. It is for the parties in my judgment now to apply to this court for its orders to be registered in Scotland. So far as the applicants are concerned this will pave the way for a variation and future review of their present contact order. . . Those orders seek fully to establish and maintain future contact between father and son against the back ground to which I have referred. It will be for the Scottish courts to review the current orders as and when required so to do. A copy of the court welfare officer's reports will be in the court file."

18. When the order and the reasons were transmitted to the parties, a letter was written by the solicitors acting for father and grandmother to the court, in which they took objection to what had occurred in the court. They say:

"Further to your letter of the 7th December 2000, our letter to the Court of the 11th December 2000 and our subsequent telephone conversation with His Honour Judge Barratt QC and his Clerk of the 12th December 2000, we confirm that we have now had an opportunity to discuss this matter with Counsel but not yet taken instructions from our client."

19. They objected to the residence order. They said that they had fully expected a hearing on the 14th and had prepared fully for that, and they said that they disputed that the mother should have a residence order and that accordingly both that and the outstanding application for contact and parental responsibility required further court hearing and should therefore be listed. The judge responded to that with a refusal, which was dated 20 December and which essentially reiterated his conclusion that he would neither hold a further hearing nor grant permission to the father's and grandmother's solicitors to appeal his order of 12 December. He concluded:

"If either [father or grandmother] wishes to apply for a residence order, they should do so in Scotland, where the child now lives. [The mother] will no doubt apply to this court to register the residence order in her favour . . ."

20. That was, as it were, the end of the case as far as he was concerned.
21. That provoked an application to this court for permission, which I provisionally refused on paper on the ground that, although the proceedings in the Chichester County Court between 12 and 14 December were unorthodox, the judge was only endeavouring to deal with the situation pragmatically in order to avoid a sterile hearing and pointless expenditure of effort and costs. I further expressed the view that the judge's basic premise, namely that jurisdiction had passed to the Scottish courts, was sound. However, the application for permission was renewed at an oral hearing on 18 May. Miss Reid-Chalmers for the father and the paternal grandmother persuaded me that the judge's failure to deal with the outstanding application for parental responsibility, and his failure to perceive that that application was not transportable to the same extent as the outstanding application for contact, justified a further oral hearing but on notice to the mother's advisers and with a short transcript to ensure that they knew the point that they had to meet.
22. So today's hearing raises only the question of whether we should grant permission and, if we do, what alteration we should make to the order of Judge Barratt. My Lady has continued the pragmatic approach adopted by Judge Barratt in the Chichester County Court. She has sought to impress upon counsel the importance of getting to the realities of the case and not wasting precious time and also public money on legal niceties which, far from advancing any resolution of the disputes within the family, only postpone the day when something useful and practical will happen. Accordingly, there has been an acknowledgement, rather than a concession, on the part of Miss Davis for the mother, that the father's outstanding application for parental responsibility is not an application that could be usefully resisted on the application of the principles established by decisions of this court governing the grant of parental responsibility. Equally, Miss Reid-Chalmers, although conceding nothing, has recognised the realism of the judge's assessment that this mother, who has always been the primary carer, plainly is entitled to a residence order if she wants one, particularly in the light of the continuing conflict within the family. All that remains, once those essential foundations are put in place, is the unresolved and continuing dispute as to contact. Again without making any concessions, Miss Reid-Chalmers has understood the inevitability of any continuing disputes being decided by the Inverness Sheriff's Court.
23. So the only question is whether, before the court passes the judicial problem over the border to the Sheriff's Court, the legal framework establishing the realities immediately prior to transfer needs any embellishment. In my view it plainly does. I am in no doubt at all that had Judge Barratt had the assistance of counsel before him on 12 December, to point out that the father had an unresolved outstanding application for parental responsibility, he would have dealt with that at the same time and in just the same manner as he dealt with the mother's application for residence. Accordingly, I would grant permission to the very limited extent, and for the very limited purpose, of allowing the appeal only to add to the order made on 12 December (but dated 13 December) an additional paragraph, which will be paragraph 3, granting to the father his outstanding application for parental responsibility.

24. THE PRESIDENT: I agree with the judgment of my Lord, Lord Justice Thorpe. The orders for residence to the mother and parental responsibility to the father are obviously the right orders to be made by this court at this time, by which I mean the court below and the Court of Appeal. It was quite clear to me, as to my Lord, that the failure to give parental responsibility was an oversight by the trial judge in the somewhat unorthodox way in which he dealt with this case before (as he saw it and I entirely agree with the trial judge) it has to go to Scotland. The issues of residence and parental responsibility, as I said, needed to be settled and have now been settled by us, but the issues on contact remain outstanding.

24. It is just not possible for a court in England to make realistic orders as to contact between a child of four and a half, habitually resident in Scotland, and his father and grandmother living in the south of England. There are real problems as to scarcity of resources which must be looked at carefully to resolve. It is quite clear in my judgment that future applications concerning J have to be heard in Scotland, presumably in the Sheriff's Court in Inverness where J now lives. The sheriff should have the opportunity to see the English file and all the English papers, including the judgment below and in this court, and the court welfare report.
25. It is clear to me that Judge Barratt QC considered in October 1999 that some contact should be arranged between J and his father, although in the first instance it should clearly be supervised. On the facts of this case, he made an important decision that there should be contact between J and his paternal grandmother, and the judge intended that contact should take effect prior to any contact with the father. Consequently, this matter must now cease to be, as my Lord has said, in the English court and must be heard for the future in the court of the habitual residence of the child; that is to say, Scotland.
26. I therefore agree with the orders that my Lord has indicated. The orders therefore will be that permission to appeal and an extension of time are granted. The appeal is allowed to the extent that (and only that) the father be granted parental responsibility to his son J and the order of 12 December, dated 13 December, should be amended to reflect that, as my Lord has suggested, by an additional paragraph 3. Subsequently, I think this court should direct that the issue of contact should now be heard in the jurisdiction of Scotland, and there should be permission to provide to the Scottish court (presumably the Inverness Sheriff's Court) all the relevant documents in the proceedings. We direct that our judgments be provided to the parties at public expense, with a copy to be provided to the Scottish court if or when any application for contact or any other child application is initiated in Scotland. This court as part of the order directs that the mother's private address in Scotland be lodged with the file today - as I hope it has already been done, but we make an order to that effect - and that the address be not opened and disclosed to the father or the grandmother without the permission of the county court; that is to say, the circuit judge or the district judge.
27. I would perhaps just add that if the mother - and I have no reason to assume that she is intending to vanish - but if the mother should for any reason not take proceedings, not make any suggestion as to contact and the father and grandmother, because of the end of these proceedings in England, do not have the opportunity to get in touch with the mother and do not know whether she has lawyers, they would be at liberty to seek from the county court the opportunity to see and take advantage of the mother's private address in order to get in touch with her. That, I hope, will be a spur to the mother to keep a contact between her and the father and grandmother by solicitors or by some other means that would respect the confidentiality of her present address in Inverness. It does give the father the opportunity to find out where she is. If he does find it out, he must be at great pains to use it for the proper purpose. He will not be permitted to have it unless the mother has demonstrably failed to let him know how to get in touch with her or her lawyers.
28. No order for costs save detailed assessment of each party's costs.
ORDER: Permission to appeal and an extension of time granted. Appeal granted to the extent that the father be granted parental responsibility, and the order dated 13 December to be so amended. Further issues to be heard in Scotland, with permission granted to move the papers to that jurisdiction. Copies of the transcript of this judgment to be provided to the parties at public expense, and a copy to be provided to the Scottish court if any child application is made there. No order for costs save detailed assessment. The mother's private address to be filed with the court, not to be disclosed to the father or the grandmother without permission from the court. (Order not part of approved judgment)