England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BARNET COUNTY COURT
(His Honour Judge P Latham)

		Royal Courts of Justice Strand London WC2
		Thursday, 5th July 2001

1. LORD JUSTICE THORPE:This is an application by Mr W for permission to appeal an order made by His Honour Judge Latham on 26th March 2001. On the face of it, this application is unlikely to succeed, since all that Mr W seeks to achieve is to vary the order made by Judge Latham on 23rd March 2001 to extend the monthly weekend staying contact from 10.00am Saturday to 7.00pm Sunday to take in Friday evening and Sunday evening.
2. Mr W's proposal in the court below was that he should pick up from school on Friday evening and return to school on Monday morning. That proposal had some support from the court welfare officer, Miss Sharp, who, in the concluding paragraph of her report of 9th January, said:

"I am inclined to suggest that the Court leave staying contact at one weekend a month, Saturday to Sunday. If Mr [W] moves to Watford as planned, then the potential for greater contact is increased and should be facilitated. It may be that if contact runs from collection from school on Friday evenings to return to school on Monday mornings, then this offers a compromise, but only on the understanding that school uniforms are to hand and either laundered by Mr [W] over the weekend or he provides a spare set."

3. The father's move to Watford was achieved in mid-February. Accordingly, the option for extended weekend contact was manifestly before the judge at the trial in mid-March. Miss Sharp gave evidence at the trial, and it is obviously important to focus on what she said in March (with the knowledge that the father had moved) rather than what she said in January (when she contemplated that possibility). Accordingly, it will be necessary for her evidence to be transcribed, and I direct that a transcript of her oral evidence to the judge be prepared as a matter of urgency.
4. The judge dealt with the option only by implication. He said, at page 50 of his judgment:

"In broad terms, I accept the conclusions of the court welfare officer ..."

5. On the following page, however, he said:

"The conclusions that I reach ... about the order to be made ... have to take into account not only the court welfare officer's investigations, but the findings of fact that I make on the disputed issues ... that [she] does not have to be involved in."

6. One of the disputes centred on what had happened at the junior school on an occasion when both parents were there to make a collection. The headmistress, Mrs E, gave evidence to the judge of the incident and strongly criticised the father for his behaviour. The judge accepted her evidence and barred the father from attending the school on any future occasion. So it can be said that, by implication, he rejected the court welfare officer's suggestion of increased contact; but nothing is expressly said to explain the departure from her proposal.
7. Mr W makes a number of subsidiary points. His first and principal is that there has never been any problem at all at the junior school other than on occasions when both he and his former wife have been present at the same time. The arrangement for collection after school on Friday and return on Monday morning would not obviously involve the mother's attendance at the school. Furthermore, Mr W says that in practice the children would simply take a school bus, which would bring them to within 300 yards of his home, and by the same reverse route would they return on Monday morning. This is because - and it is Mr W's next submission - none of his children will attend the junior school at the end of the current school term, which I take to be imminent. There are three children here: a 13-year-old boy and twins (boy/girl) of 10. The twins join their brother at his secondary school at the commencement of the next school year in September. So those problems all seem to evaporate.
8. As to the points made by Mrs Sharp in her written report, Mr W says that no point was taken on the detail of school uniform at the trial and therefore there is no contention in this area. His proposal is simply to buy an extra set of uniforms, which was the second alternative raised by Mrs Sharp in her report.
9. I have some little anxiety about this case because, on what was a very slender issue as to the quantum of continuing contact, this circuit judge delivered a judgment running to 88 pages. The impression that I have is an excessive concentration on adult behaviour. It may be that the judge, in his zeal for conducting a fair trial on over 60 issues contained in a Scott Schedule which he had introduced into the case, lost sight of the importance of child welfare. These children enjoy their time with their father and, if they were the arbiters, would see more of him. I have an anxiety that this judge approached the whole issue far too forensically.
10. So although, on the face of it, this is hardly suitable material for the Court of Appeal, I have decided to adjourn this application for permission to a further oral hearing on notice, with appeal to follow if permission is granted. I will say that it is suitable for a two-judge constitution; I will say that it must be listed in front of me, preferably before 3rd August; and I will give a time estimate of one and a half hours.
11. I have warned Mr W of the costs implications of a further hearing.
12. This brief judgment must be transcribed as soon as convenient to the shorthand writer and I will approve it swiftly, so that those who act for Mrs W will know precisely the basis upon which I direct a further hearing.
Order: application adjourned to a further oral hearing on notice, with appeal to follow if permission granted; to be listed before a two-judge constitution, to include Thorpe LJ, preferably before 3rd August 2001 (time estimate 1½ hrs); transcript of Miss Sharp's oral evidence to the judge to be transcribed as a matter of urgency.