England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(His Honour Judge Kevin Barnett
sitting as a Judge of the High Court)

		The Royal Courts of Justice The Strand London WC2A Thursday 2 August 2001

Thursday 2 August 2001

1. LORD JUSTICE THORPE: This judgment is to be taken as a supplement to the judgment given on 17 July 2001 at a hearing without notice. Today is the on notice renewal and we have the advantage of the father in person and Mr Jubb, instructed by CAFCASS, for the child P.
2. There are three points, or perhaps four, that fall for decision today. The first that must be considered is whether the refusal of the mother's application for adjournment on 14 December 2000 constituted such an injustice as to compel the court to grant permission, allow the appeal, set aside the order and direct a retrial. Allied to that is the second question raised by Mr Turner QC, as to whether the discretionary choice of a contact regime that allowed the mother only one short weekend a month and one two-week staying holiday is open to appellate review.
3. It is perhaps easier to answer the second question first. The judge, Judge Barnett, sitting as a judge of the Family Division, gave a great deal of time and effort to an extremely difficult case at a long hearing in May 2000 and then at the comparatively brief hearing in December. There was a mountain of material for him to digest and weigh. It could not, in my view, possibly be said that his discretionary determination in December fell without the generous ambit.
4. It is the first question that is of greater concern to me. It is quite obvious that the extremely urgent application for representation filed by Dawson Cornwell on 6 December had to be dealt with by the Legal Services Commission in a realistic way. If the application simply went into the bureaucratic machine and standard letters were issued from time to time, the chances of the mother receiving fair treatment were much reduced. We see from the whole correspondence, now researched by Mr Turner, that she seems to have received just such a bureaucratic treatment. The letter of 7 December, the two letters of 18 December, the form of the certificate when it finally emerged on 2 January, all demonstrate that there was no intelligent mind considering what was necessary to do justice to an application by a litigant who qualified on financial grounds and whose case on the merits was supported by an opinion from a specialist leader.
5. It is impossible to criticise the judge, however, for he was simply unaware of the realities. All that he had to go on was, somewhere within the welter of paper, a copy of the letter of 7 December. The application as advocated by the mother laid stress on her desire to have a one-day hearing and not a two-day hearing in December, and then a more extensive fixture in January when Mr Turner might be there on a pro bono basis.
6. Mr Jubb did not know the realities. If he had known them, he would probably have made different representations on behalf of the child. At the close of his submissions the judge heard the mother in reply, when she introduced a host of irrelevancies, nowhere concentrating on the point that she had Dawson Cornwell and she had an application with well-founded prospects of success about to be determined. I on 17 July said to Mr Turner, "Well, what does it matter, because she only has to launch a further application, which is the equivalent of retrial." But Mr Turner draws attention to the order of 24 July which, by paragraph 4, prevents the mother from issuing any application for a section 8 order prior to 1 August 2003.
7. So what is the fair and necessary intervention by this court? For this and other reasons, to which I will come, it is plain to me that permission to appeal must be granted and that this court, constituted as it now is, should consider what revisions are necessary to the order of 19 January 2001 to reflect such of Mr Turner's submissions as succeed.
8. One possibility, of course, would be to not only set aside the determination as to continuing contact, but to order a retrial. That, in my opinion, would not be the appropriate order. The point is well made by Mr Jubb that full representation in December 2001 would not necessarily have led to a different determination. The prospect of a retrial de novo would be rightly viewed by the father as a manipulation of the system by the mother, a manipulation that would put him in a most difficult situation, since he is apparently not eligible for legal aid on financial grounds, with the consequence that he has already spent £19,000 on the lawyers. £2,000 is still outstanding and being paid by monthly instalments. His prospects for future litigation are therefore limited. So I would not myself interfere with the principal paragraphs of the order of 19 January.
9. I would, however, write into that a order a new paragraph which would have the effect of varying paragraph 4 of the order of 24 July, not in relation to its first restriction on the issue of application for variation of residence order, but only in respect of the restriction on the issue of application for a section 8 order. For the date of 1 August 2003, I would propose that there should be written a new date of 1 October 2001. That at least puts the mother on an equal footing with the other parties as from that date.
10. Plainly, there will be, and should be, no listing for final determination in this calendar year. But the variation will permit some interlocutory steps, if application be issued by the mother in the Michaelmass term. Any listing of such an application in the next calendar year must be before a full judge of the division. The same direction applies to any future application listed by any other party. For, like Mr Jubb, I feel that there has been a management of this case since its transfer from the Guildford County Court that was no doubt inevitable but remains regrettable. By that I mean no criticism of Judge Barnett, who has obviously given a great deal of anxious thought to this difficult case, but it is plainly a case that requires the management and determination of a specialist High Court judge, and it is plain that it was for that very need that the case was transferred up.
11. In relation to two much smaller points, paragraph 6 of the order of 19 January provides for disclosure of litigation papers to P's general practitioner and possibly to a psychotherapist if one be subsequently instructed. I would simply propose the variation of that paragraph to confer the discretion as to what material should be disclosed to CAFCASS alone. CAFCASS has an independence as well as an obligation to promote the interests of P which make it appropriate for the discretion to rest there.
12. Finally the costs order must also be rewritten. The judge, understandably in the circumstances, franked the bill without sufficient enquiry. Even on its face there must be a question as to the propriety of putting the whole of counsel's fee on 19 January to the resistance of an application which had zero prospects of success, and which hardly needed a member of the Bar to resist, when counsel had to be there for perhaps the more direct task of taking and perfecting the order flowing from the judgment that had been circulated on 10 January. So that oversight can be safely corrected by simply saying that the costs to be paid by the mother are to be limited to the costs of resisting the section 91(14) application, and that those costs must be assessed by a costs judge if not agreed. Those are the only variations I would propose.
13. MR JUSTICE WILSON: I agree.
ORDER: Permission to appeal granted and appeal allowed. Order of 19 July 2001 varied as detailed in judgment. (Order not part of approved judgment)