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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> H (Children), Re [2001] EWCA Civ 1170 (2 July 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1170.html
Cite as: [2001] EWCA Civ 1170
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(Mr Justice Munby)
Strand London WC2 Monday 2 July 2001 |
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B e f o r e :
(Dame Elizabeth Butler-Sloss)
LORD JUSTICE THORPE
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| H (CHILDREN) |
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Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AD
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
The Respondent did not appear and was not represented
____________________
Crown Copyright ©
- LORD JUSTICE THORPE: Few contact cases have proved so lengthy and so laborious as the proceedings in relation to contact between Mr H and his children. If there are any milestones in the proceedings, one must surely be the judgment of Munby J, handed down on 22 March 2001, together with a postscript dated 23 March 2001. One of the orders made by the judge committed Mr H to prison. Another of the orders terminated direct contact between him and his children. Soon after his arrival in prison, Mr H issued an application for permission to appeal the order terminating direct contact.
- The skeleton argument accompanying the application shows a number of attacks made on the judge's approach to the future of contact. He also, within the same skeleton argument, raises issues on a number of other fronts: injunctions, having contact, what is meant by having contact, indirect contact, the volume of letters that are permitted, injunctions, specific issues orders made in relation to school arrangements, and a Grepe v Loam order made by the judge.
- This afternoon we have heard Mr H in support of that skeleton argument, and he has elaborated the points with his customary good humour, persuasiveness and zeal. But in the end it boils down to a simple central core: can it be realistically contended that this judge, who devoted great industry and great conscientious thoroughness to the determination of the issues, exceeded the generous ambit of discretion vested in him? He was only the last in a chain of judges of the Family Division who have had the responsibility of holding the balance between Mr H's rights and the overriding issue of child welfare. As the argument has developed we have looked in turn at the judge's explanations for the orders which are criticised. The judge's reasons for refusing direct contact are particularly specific and clearly stated – see, in particular, paragraphs 409-414 of his judgment. He is equally clear in his explanation for the need to make the specific issue orders sought by the mother – see in particular paragraph 419 of the judgment. The judge's conviction that it was necessary to move beyond an order under section 91(14) to an inherent power order equally emerges from paragraphs 469-471 of the judgment. I make these references only to show that the orders made by the judge were not made at a whim but were carefully considered and equally carefully explained.
- I see nothing to take this case out of the general fate that befalls application for permission to appeal where the trial judge has exercised a broad discretion in the management of future relationships within a family whose dynamics are particularly complex and fraught. I have no hesitation in reaching the opinion that the application for permission to appeal those provisions of the order of 22 and 23 March that are criticised should be refused.
- In addition, on 28 June, the court received a notice of application for permission to appeal another order of the same judge on the grounds that he should not have given his judgment in open court. Mr H has this afternoon explained that this application of 28 June relates to the order and judgment of 27 April. On 27 April, Munby J heard and refused a second application by Mr H to purge his contempt. On that occasion he exercised a discretion to go into open court to explain why he was deciding the application as he did. He released into the public domain the majority, but not all, of the judgment handed down on 23 March. Mr H's complaint is that the judge's abridgement of his chambers judgment was partial and that he was prejudiced in that he had no notice of the judge's intention to release part of his judgment into the public domain and no opportunity to comment upon the judge's abridgement.
- This is, unlike the previous application, an unusual situation and at first blush there might seem to be some substance in Mr H's complaint. But, given the highly unusual circumstances - the relationship between Mr H and the family justice system, the relationship between Mr H and the media - the decision taken by the judge was only unusual to the extent that it reflected the unusual surrounding circumstances. I have also reached the conclusion that it was within the broad band of his discretion, he having the responsibility for the continuing management of the case.
- The last application brought to the court today was received by this court on 27 June. Mr H wishes this court to review a decision taken by Munby J on 14 June and explained in a judgment handed down on 21 June. On those dates Munby J released Mr H from prison and explained the basis for so doing. The issue relates only to the terms of release and whether it was open to the judge to impose a suspended sentence to have effect beyond 22 August 2001, the date on which Mr H would have been released from custody had he served the full sentence imposed on 23 March with full remission for good conduct. As my Lady has already indicated, that application raises a point of law which requires both a full court and also much fuller argument than Mr H could advance to the court as a litigant in person at a without notice hearing.
- It seems that the court has treated this application of 27 June as an application for permission. My Lady has already pointed out that, seemingly, this involving the liberty of the subject, Mr H has a right of appeal. She has dealt with that uncertainty by saying that, if any permission is needed, it is today granted and that appeal will be listed, hopefully before 3 August, before the full court and the Attorney General will be invited to provide an amicus curiae, as he did in the shape of Mr Richard Ritchie before the judge. If any further steps need to be taken by Mr H, in preparation for that fixture, no doubt one of the office's lawyers will inform him of the court's expectation. I would propose to deal with today's applications in that way.
- THE PRESIDENT: I agree with the judgment of my Lord and the conclusions to which he comes.
- We adjourn the appeal against a suspended committal order of 14 June 2001 to the full court with the hope that it will be heard before 3 August;
- If permission to appeal is required, it is granted;
- We request the Attorney General to provide a friend of the court for hearing of the appeal;
- The application for permission to appeal the contact order of 23 March 2001 is refused;
- The application for permission to appeal the decision of Munby J to give judgment on 22 April 2001 in open court is refused.
Monday 2 July 2001
ORDERS:
(Order not part of approved judgment)