England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL Wednesday, 26th September 2001

Wednesday, 26th September 2001

1. LORD JUSTICE THORPE: This is a case which seemingly is conventional enough: a father's application for contact to his son which, after three years of litigation, ends in a sterile order but an order made by an experienced circuit judge who has conscientiously recorded the relevant evidence and explained his conclusion in a full judgment. However, there are aspects of the case which are undoubtedly unusual.
2. This is a private law dispute, but seemingly a district judge in the county court, on a date in June 1999, joined O as a party and subsequently appointed a solicitor to act for him. That was at a stage when the father was in person. Shortly thereafter, on an application without notice, Mr Hodges, the solicitor appointed, was given leave to disclose the papers in the case to a Mr Hardy, an independent social worker. It seems that that was implicitly the court's permission to Mr Hodges to instruct an expert. It is perfectly plain that thereafter Mr Hardy played a crucial role in the case, and it is perfectly plain that at various stages judges in the court have relied heavily on his assessments and recommendations.
3. Mr W's principal point is that he had a vibrant relationship with his son which has effectively been stifled to death by the family justice system, and he contends that such an outcome simply cannot be either fair or acceptable. I confess to some anxiety about the judicial conclusion, expressed as it is an order that seemingly denies Mr W any direct contact to his son for an indefinite period. The judge seemingly invested in the hope that such an order would lead to the unlocking of the impasse within the family and that, once relieved of the pressure of an order for direct contact, natural growth would lead to some positive development. Possibly to that end, the judge provided that the mother should use her best endeavours to arrange monthly telephone communication initiated by her on O's behalf. Mr W tells me today that there has not been a single telephone call received since the making of the judge's order on 1st March.
4. One additional feature of the recent history needs to be recorded. The judgment of His Honour Judge Lloyd in the Brighton County Court was given on 1st March, and this court sealed Mr W's application for permission on 16th March. I am at a loss to understand how it has taken so long to come in front of me for determination. Applications of this sort need to be put before a single judge quickly if the appellate system is to achieve proper levels of justice. Mr W tells me that it has not been listed because of inordinate delay in obtaining a transcript of the judgment of Judge Lloyd either from the County Court or, alternatively, from the transcribers.
5. I have pointed out to Mr W that any application in this court faces the formidable barrier of an order made by an experienced circuit judge after careful consideration of all the evidence, supported by the recommendation of the independent social worker and explained in a full judgment. In those circumstances it is rare indeed for this court to intervene. I have also pointed out to Mr W that, if I extend this application to an oral hearing on notice, he runs an obvious risk that he will face applications for costs in the event of his failure, applications that might be brought either by the respondent's counsel or by counsel for O. Mr W is nonetheless most anxious that he should be given the opportunity of an oral hearing on notice, and I have decided, not without some hesitation, so to direct.
6. The application for permission is adjourned to be heard in the President's court in November, on notice, by a three-judge court if practicable; if not, by a two-judge court. I will give a time estimate of between one and two hours, and I will say that if the application for permission is granted, the appeal will immediately follow.
7. There are two further aspects in the history that I wish to refer to this morning. The first is that Mr W asserts that he endeavoured to achieve some resolution without further contention by initiating mediation in the summer 2000. Certainly there is abundant evidence in the order made by Judge Sessions on 7th July, and in subsequent correspondence, that the parties were destined to see a local mediator on 8th August. Mr W asserts that that process was aborted by the respondent's withdrawal of consent to mediation. If that be right, it is an aspect that is seemingly unreflected in the judgment under review.
8. Another aspect that concerns me is that there seems at no stage to have been any attempt to resolve this family's problems therapeutically. Mr W informs me that he has recently made an introductory visit to the Institute of Family Therapy in London; but that issue does not seem to have been investigated either with the respondent's advisors or with the solicitors who presumably still act for O. So there remains a possibility, all be it not a strong one, that an intervention by this court at this stage could achieve something to advance what seems a bleak and sterile conclusion of the proceedings in the Brighton County Court.
9. My last word is upon the documentation. I have been supplied with two bundles for the purposes of this morning's hearing, running to 644 pages. Mr W tells me that the drudgery has been performed by the Citizen's Advice Bureau, and obviously I am grateful to them for the great help that they have extended to Mr W. However, it is plain that my bundle and Mr W's bundle do not march in step, and it is equally plain that the index that I have been provided with does not match the subsequent pagination in the bundle. So it will be necessary for Mr W to remedy what may be quite small defects so that when this case is next listed in the President's court both the parties before the court and the judges in the court are provided with identical bundles and can therefore pursue lines of inquiry more rapidly than I have been able to this morning.
10. That is the order that I make.
Order: As above.