England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2001] EWCA Civ 1426

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		Neutral Citation Number: [2001] EWCA Civ 1426
		NO: B1/2001/1289

IN THE HIGH COURT OF JUSTICE
CIVIL DIVISION
APPLICATION FOR PERMISSION

Royal Courts of Justice
Strand
London WC2
Tuesday 21st August 2001

B e f o r e :

LORD JUSTICE THORPE
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APPLICATION IN C (CHILDREN)

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Computer Aided Transcript of Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 202 7421 4040 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

The Applicant appeared in Person
____________________

HTML VERSION OF JUDGMENT
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LORD JUSTICE THORPE: This is an application by Miss Gerrard for permission to appeal an order made by Judge Daley on 7th March 2001.

It is unnecessary to go into the facts in any detail. The court had to consider what contact was best for three children, Emma, Olivia and Samuel, aged respectively seven, three and two.

The issue of residence at a hearing before the district judge in October 2000, the residence order had gone in favour of the mother, Miss Gerrard. The father, Mr Consodine, had appealed. The appeal had come before Judge Headley in January. He had dismissed the appeal as to residence but had allowed the appeal as to contact, since he felt that there had been inadequate investigation of the factual background by the district judge. He accordingly said that there should be a fuller hearing before a circuit judge in February.

That was the hearing that came before Judge Daley. She heard the case over the course of several days, giving her judgment on 7th March.

The unusual feature of the case is that the fundamental investigation of the relevant background was not conducted at the principal hearing in October but was conducted at a hearing to assess the pattern of contact some 6 months later.

However, I have already explained how that circumstance developed and it is clear from the judgment of Judge Daley that the welfare officer felt that the interest of the children required some sort of investigation of the fundamental conflict between the mother's case (that she was the victim of sexualised violence) and the father's case that he had been unjustly accused.

Judge Daley having heard the parties came to the conclusion that she preferred the father's evidence to the mother's and accordingly rejected the allegations against the father and upheld his denial.

That has caused the mother very great distress and has led her to bring this application to the Court, accusing the judge of gross bias and lack of professionalism. Those allegations are very difficult to substantiate and there is nothing other than the mother's deeply felt conviction to test it.

The judgment itself gives no support to the allegation. It is a full judgment, it is a careful judgment and it is an entirely rational analysis of the dispute between the adults, and there is a perfectly acceptable explanation for preference of the father's evidence. Accordingly when I considered the case on paper, I said that although the investigation of the history was unusually extensive, in the end, the only issue was quantum of contact. In those areas the trial judge exercises a wide discretion and this Court would not be likely to differ.

I remain firmly of that view. Indeed, having heard Miss Gerrard, I am even more convinced that this is not a case for the Court of Appeal. Its future management must remain within the Liverpool County Court. Miss Gerrard says that the contact regime laid down by Judge Daley has proved disastrous, for the reason that the children never really know where they are. They are shuffled between her home and the father's home and loose that essential sense of security. She further says that the father remains abusive and threatening. She has many letters to prove it.

Finally, she says that there is likely to be a police investigation and possibly a trial within the criminal justice system of the allegations which Judge Daley seemingly dismissed.

So this case is likely to continue, certainly in the County Court and possibly in the criminal court. I would say to Miss Gerrard that it is terribly important that she holds on to her sense of well-being through all this. The children depend on her vitally and she must sustain her emotional and psychological stability in order to provide them with what they need. I appreciate it is extremely distressing and this is a tremendous challenge for a parent to have to live through these turbulences, particularly if there is going to be concurrent family court proceedings. So the most important thing is that Miss Gerrard should hang on to her sense of internal security and I appreciate it does not help if she feels that the family justice system has let her down. But I can assure her that future proceedings in relation to contact will not necessarily be listed in front of Judge Daley. She has not reserved the case to herself and it may be that for a future listing it will be sensible if the case were put back in front of Judge Headley or possibly the designated judge of the Liverpool Court Centre, Judge Downey.

However, for today it is perfectly plain to me that this is not a case which this Court should entertain, given its very limited function to correct errors in court of trial and not to conduct an independent discretionary review.

So, for all those reasons, I confirm the provisional refusal given on paper on 3rd August.