England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(HIS HONOUR JUDGE KEVIN BARNETT
Sitting as a Deputy Judge of the High Court)

		Royal Courts of Justice Strand London WC2 Tuesday, 17th July 2001

Tuesday, 17th July 2001

1. LORD JUSTICE THORPE: These are applications for permission to appeal orders, dated 19th January 2001, made by His Honour Judge Barnett sitting as a Deputy Judge of the High Court. The applications for permission were lodged by the mother, Mrs Tilley, in person, and they were dated respectively 1st and 6th February. The notice of 1st February is to be found in Bundle A at 2046, and the notice of 6th February to be found in Bundle C at 2606.
2. These applications were listed for hearing on 16th May when Mr Turner sought an adjournment to give him an opportunity to reduce into some semblance of order and sense a skeleton argument which extended to 46 pages which was apparently dated 1st February, but which was received by the court on 15th May. That application was granted, and the applications for permission restored to the list today. Very unfortunately Mr Turner's professionally prepared skeleton argument although dated 16th July did not reach the court until the morning of the hearing and a great deal of time has been wasted, both in reading, in trying to make sense of three lever arch files, and in plucking from the files the papers relevant to today's hearing without any professional guide. So the value of Mr Turner's pro bono contribution is really in the oral argument that he has addressed this morning.
3. It is unnecessary for me to go into any of the background. That was all set out in a judgment that I gave on 27th November 2000 refusing an application for permission to appeal an earlier order of Judge Barnett of 24th July 2000. In my judgment of 27th November I emphasised that all efforts should be concentrated on the review set by judge Barnett for 14th and 15th December 2000 at which there was every expectation that the limited contact regime set by the order of 24th July 2000 would be extended. In the event on 14th December Mrs Tilley again appeared in person. She sought an adjournment. She wanted to obtain leave to issue a residence order application to re-litigate all the issues of residence, and seemingly she wanted Mr Turner to represent her. The judge refused her application for adjournment. He said that he had time enough in the two days allowed to review the contact regime, and the application for leave to issue a residence order application could, if necessary, go over to 19th January 2001.
4. Mr Turner criticises the judge for refusing an opportunity for Mrs Tilley to obtain representation on the grounds that she had had plenty of time and that if Mr Turner was not available she could simply have arranged for some other silk to appear in his stead. Mr Turner says that was quite unrealistic since he was the only silk who would have been prepared to appear pro bono. But criticism of the judge is difficult to sustain when he was denied much information which Mr Turner now proffers, information which obviously might have altered his approach. Mr Turner says that Dawson & Cornwall were acting for Mrs Tilley and were endeavouring to obtain legal aid for the contact review hearing. He says that he wrote an opinion of 28th November instructed by Dawson & Cornwall supporting the application on the merits. He says that legal aid was in fact granted on 18th December (presumably that means a certificate was issued to Dawson & Cornwall) but of course by then it was all too late. He has referred to a letter from the regional secretary to the Commission dated 7th December in which Mrs Tilley is informed that her application for an emergency certificate has been refused but that her application for a substantive certificate will nonetheless be determined. Mr Turner cannot understand, nor can I, why that is all addressed to Mrs Tilley and not to Dawson & Cornwall.
5. The judge having refused the application for adjournment proceeded to a hearing at the end of which he was highly critical of the mother's conduct and her personality. He accepted a highly critical analysis of her behaviour and personality formed by Dr Swift, the expert instructed by the official solicitor, and he extended the restricted contact regime indefinitely. That is reflected in the second of the two orders in respect of which permission is sought today. The judge in fact reserved his judgment on 15th December and circulated a written judgment on or about 10th January. There was then to be a hearing on 19th January at which any incidental issues might be argued and decided, and at which the mother's application for leave to issue the residence order application would also be decided. The mother failed to attend or boycotted the hearing on 19th January. Again she wanted Mr Turner there pro bono but again he was not available, and she simply submitted written submissions on the day which sought on adjournment, and which presumably advocated the grant of her application for a residence order which she had formally issued on 12th December. The judge refused her application for an adjournment and dismissed her application for leave to apply for a residence order. He went on to accede to an application by the father and the official solicitor for leave to disclose papers to P's GP and any psychotherapist that might be instructed, and he condemned the mother in the father's costs in a sum summarily assessed of £1,177.38. At the same time he made the second order which simply laid out the restricted contact regime giving effect to the handed down judgment.
6. In relation to the second order reflecting the reserved judgment Mr Turner seeks permission principally on the grounds that there is a real risk of injustice. This mother is her own worst enemy in court. She desperately needed a legal team to put her case in a way that would not antagonise the judge. As a result of her failure to explain the position properly to the judge he went ahead. Had he known of the possibility that a full certificate would have been granted within a matter of days he might have acted otherwise.
7. In relation to all those submissions I am extremely sceptical. First, all the information proffered by Mr Turner today is quite uncorroborated by any documentation, and the only document in the file is the one letter from Mr Deer, to which I have already referred (Mr Deer being the regional secretary), is far from corroborative of the tale. There is also the point that even if permission were granted and even if an appeal were allowed the best that would be achieved would be a retrial, and effectively the same remedy could be gained by the issue of an application for extended contact.
8. However, it is very important that in this particularly difficult case there should be no blemish in the court's management, and I am prepared to adjourn this application for a further hearing on notice warning Mrs Tilley that there may be a costs risk in bringing the other parties to an on notice oral hearing, and further directing that at least 48 hours before the listing there must be served on the other parties, and filed with the court, a succinct record of the efforts that were made to obtain legal representation for the fixture on 14th December and the outcome of those efforts.
9. I turn now to the second order in respect of which permission is sought. Despite all Mr Turner's advocacy I cannot see that the judge fell into any error in refusing the mother's application for an adjournment of her application for leave to issue residence order proceedings, nor can I see any error in the judge's dismissal of that application. It was in the history of the case plainly hopeless. Its issue on 12th December was plainly strategic, and in the exercise of a broad discretion the judge is not to be criticised.
10. I equally am very doubtful whether there is any merit in the attack that is directed to paragraph 6 of the order. It is hard to see at this stage how a seemingly sensible order for disclosure of objective record to the medical team could be of the least prejudice to Mrs Tilley. In any event the standard to be set is the welfare of P. It is hard to see how it was not in P's interest for her medical team to be properly informed about the fraught history. However, it is fair to say that that order was made without notice to the mother, and I would just be prepared to say that that application too can be reconsidered at the on notice hearing.
11. Finally, there is the attack directed to paragraph 7. Mr Turner points to the costs estimate on which the judge acted. It is to be found at pages 2729 and 2730 and it reveals that the figure sought by the father was precisely the figure allowed by the judge. He made no deduction at all. Inevitably Mr Turner says that had the mother been present, and particularly had she been represented, she could have queried items on the estimate, and particularly raise the point that the lawyers would have had to have been there anyway for the perfection of the order arising out of the review hearing. There is the further oddity that, beside the costs estimate for resisting the mother's application for leave to issue, is a costs estimate in relation to the hearing on 14th and 15th December which includes nothing for counsel and adopts for the solicitors a rate that is seemingly modest by comparison. So there is something to be said for the argument that in the absence of the mother on 19th January the judge should at the highest have made an order for costs to be assessed by the costs judge. If he was going to make a summary assessment he should not have accepted the bill submitted without any deduction; so in respect of that also I am prepared to say that the application may be renewed at the on notice hearing.
12. It is important that the on notice hearing should not be long deferred, and it may be possible to list that in the week commencing 30th July. It should not on the next occasion take very long, I would have thought a time estimate of one hour would be plenty. I have delivered this perhaps over lengthy judgment simply so that those who act for the father and those who represent P know why it is that they are receiving notice of these applications for permission and an opportunity to be heard upon them.
13. A transcript of the judgment is to be provided at public expense.
(Application adjourned; no order for costs).