England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 3rd August 2001

3rd August 2001

1. LORD JUSTICE THORPE: This is an application to appeal the order made by Judge Latham in the Barnet County Court late on Thursday evening, yesterday evening. He said that the father should have a week's contact, that is to say seven days and six nights, with his child, A, who is nearly three and a half to commence tomorrow at 2.00 a.m.. The mother was very upset by that ruling since she had throughout contended that it was too much too soon. It is a great credit to Mr Bhakar that he has managed to get an application for stay and permission to appeal on its feet so quickly. The paperwork is impeccable. The only deficiency is a note of judgment. That is understandable in the circumstances. Mr Bhakar has very kindly read to me his rough note of judgment which, with no disrespect to him, is probably intelligible only to himself as the writer.
2. The note of the judgment shows that the judge dealt with all the issues very carefully and fully, considering the history, the mother's case, the father's case, the issues, the law, the evidence, and the findings of fact. He then applied the welfare check list and finally came to his conclusion that A was quite old enough to start modest staying contact with her father, but it would be good for her to explore and she would expand, or might expand her self-confidence and independency. The father has other children by other relationships with whom he has staying contact and she might merge into the group. He said he could not see any sound reason to stop A having holiday contact this August. That was indeed the only issue, since mother was quite prepared to concede that staying contact should start in August 2002.
3. Seemingly this was a purely discretionary decision on a relatively narrow issue. But Mr Bhakar, who has put the mother's case very forcefully, relies on A's age. He says that at three and a half she is really too young for this sort of adventure. She will inevitably miss her mother after a day or two, particularly since she has no previous experience of staying with her father, beyond what I think have been two overnight stays in the last three months.
4. Then he complains that this decision was judge driven, since the suggestion for staying contact this summer had originally come from the judge and not from the father. That may be, but judges have a quasi inquisitorial role in this field and are not limited to issues raised by the parties.
5. Finally he says that the preparation time is all too short, the mother having less than 48 hours to get herself and the child ready. I do not see an awful lot in that because getting a three and a half year old for a six night stay with her father, which is not a foreign trip, does not seem to me to require much preparation.
6. I think the real point is that the mother has a depressive history and inevitably if she cannot copy with this order then there is a real risk that the little girl will suffer knock on consequences. That is, in my opinion, what really stood against the father's suggestion that the time was now right. But the judge did weigh that in the scale. It cannot therefore be said that that was a relevant factor ignored. I think that the mother has in a sense been unlucky. The judge preferred her evidence and only on this issue did he depart from her pleas. Many judges might well have decided that August 2001 was too soon but that is not the issue for this court. The issue for this court is could any judge validly decide that August 2001 was appropriate? I think the answer to that must be yes. Thus I have reached the conclusion that this is an application which fails on the simple ground that the decision was within the generous discretionary ambit.
7. However, I think it is important that the father should be sensitive and pay due regard to the mother's sensitivities. He should ensure that during these seven days and six nights A has access to her mother, if and when she wants it; that is to say if she wishes to telephone to speak to her mother on the telephone he must arrange it. If he sees that she is patently distressed he must curtail the visit. He must also ensure that the mother has the opportunity to reassure herself as to A's well-being during the six night stay. So if the mother wants to ring up in the evening and see how A is, may be have a chat with her on the telephone, he should not put obstacles in her path. I say that because I believe it to be not only in the interests of mother but also in his interests, because if he is insensitive at this stage, knowing that the holiday has been forced on the mother by judicial decision, he could jeopardise the prospects of sensible give and take in the year ahead. It goes without saying that whatever is good for the mother and the father is going to be good for A.
8. I cannot impose these terms on the father when I am dismissing an application for permission and an application for a stay, but I would expect the father to abide by these stipulations as though they had been incorporated in the order below. Although this is a hearing without notice, Mr Bhakar is taking a note of this brief judgment and he will undoubtedly arrange for his instructing solicitors to serve a copy of the note on the father's solicitors and to draw to their attention the authority that lies behind it. I appreciate that they may not have the opportunity of doing that formally until Monday but there is no reason why they should not telephone the other side straight away to make plain the outcome of this application.
9. I end by expressing my gratitude to Mr Bhakar for what he has done to bring this issue to the court so swiftly and so intelligently. I hope that will at least give his client some reassurance that the family justice system has operated effectively to provide a second opinion and that therefore she has not been deprived of a right of appeal simply out of want of time.