England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SWANSEA COUNTY COURT
(His Honour Judge W Richards)

		Royal Courts of Justice Strand London WC2 Tuesday, 20th November 2001

1. LORD JUSTICE THORPE: This is a renewed application for permission to appeal an order made by His Honour Judge Richards in the Swansea County Court on 10th August 2001. The application that he had to decide was an application for contact in a case where there had been a history of violence within the home, an issue that had been explored in part by the court welfare officer and which had led to periods of supervised contact in preparation for trial. Those periods of supervised contact took place in January and February 2001 and were the subject of reports filed by the court welfare officer, Mrs Wilkins, later in those months. There was to be a third period of supervised contact on 27th February, and although mother and child and father attended, unfortunately the welfare officer had made a mistake and was not there to supervise. Accordingly, contact did not take place. This muddle was reported to the judge at a directions hearing on 12th March. Apparently, the court welfare officer gave brief evidence to the effect that she did not think that it was necessary to set up a further meeting for observation and assessment prior to the final hearing.
2. It seems to me unfortunate that the lapse between the final directions hearing and the hearing itself was a lapse of some five months, during which no further contact took place. The court welfare officer's reports of the two meetings that she did observe in January and February were broadly favourable. The welfare officer, who the judge described as most experienced and dedicated, said that the violence within the family during its duration did not deter the child from enjoying herself in her father's presence. She attended the meetings happily, and on the first occasion sought out her father and said a cheerful hello to him. On the second occasion the meeting was very much like the first, with the child seeming to be happily enjoying herself. There was no evidence that the relationship was other than superficial but nonetheless all the portents were favourable.
3. At the August hearing the judge evaluated the mother's steadfast opposition to contact and her case that the father was chronically violent. He made findings of violence against the father, although not at the level of seriousness asserted by the mother. He offset those findings by his conclusion that the marital relationship had been extremely volatile and that the violence was not necessarily all one way. The judge further rejected the mother's evidence as to the relationship between the father and the child at the observed contact sessions. His conclusion on 10th August was, in the circumstances, commendably cautious. He said that there should be a further session, to be observed by Mrs Wilkins, on a date to be arranged. There should then be a second meeting three weeks later and a third three weeks later still. That would enable Mrs Wilkins to report by 22nd November in preparation for a further hearing before the judge on 6th December.
4. This case well illustrates the problems that can be created by the exercise of applications to this court for permission. The application which I determined was received by this court out of time on 11th September. It was accordingly an application, not only for permission but for an extension of time and an application for a stay of the order of 10th August. All three applications were refused by me on paper on 25th September. It is to be noted that the interval of time between the receipt of the application for permission and its determination on paper was only 14 days. That promptitude is necessary in order to ensure that the programme laid down in the county court is not derailed by a challenge to the judge's order. In fact, Mrs Wilkins had arranged the first contact visit for 10th September. Unfortunately, notification to the mother came at a time when she and the child were away. Accordingly, that first visit did not take place. But once there had been a paper refusal of all applications on 25th September, clearly the judicial programme needed to be restored and accelerated to ensure that the three visits were achieved and the court welfare officer's report filed by 22nd November. It was just possible, or if not just possible it would have been possible with some acceleration of the frequency of the visits. But nothing happened. Mr. McKay exercised a right to renew the application at an oral hearing. That is a right which is important but it must not be abused. Obviously, if a judge of this court in his reasoning for provisional refusal has overlooked a relevant consideration or taken account of an irrelevant consideration or otherwise fallen into error, then it is the right and duty of the bar to correct him at the oral hearing. If the member of the bar has nothing new to say that has not been encompassed in his first skeleton argument and considered by the member of the court in his reasoned refusal, there is no discernible purpose in the renewed hearing. If there is to be a renewed hearing, plainly it should not be regarded as operating as a stay on the proceedings in the county court when the application for a stay has been refused in this court. I am concerned that this renewed hearing occurs within four days of the date upon which the court welfare officer's report is due. Accordingly, some three months in the life of this child have been rendered sterile by the exercise of the right to apply for permission, and the prospects of restoring the relationship that the judge intended have been inevitably diminished. There is nothing that can now be done to retrieve the hearing set by the judge for 6th December. There will therefore be disruption of the lists in the county court. There will be the need to find something else for the judge to do on that date and there will be a need to find an alternative date for him to deal with this case. All that is thoroughly unfortunate. Mr. McKay tells me that the father's counsel is in his chambers. I have obtained his assurance that he will speak to Miss Harris immediately on his return to Swansea and they will jointly agree a revision of the order of 10th August, and in default of agreement immediately seek the court's ruling. I will myself telephone the Swansea County Court and speak either to the judge or to the head of the section responsible for family business to ensure that this regrettable state of affairs is understood and addressed. If there is a reasonable degree of commitment all round, I see no reason why the first and second contact visits should not take place before Christmas and the matter restored before the judge within the month of January. If that is achieved, then the judge's management of this case will not have been seriously frustrated. All that said, this renewed application for permission is refused.
Order: Application refused.